Indefinite Detention and the Rule of Law — Catherine Jaquiss

12 December 2017 by Guest Contributor

On 1 December 2017 an event in Temple Church with the Bar Council in collaboration with Refugee Tales, an outreach project whose aim is to see the end of indefinite immigration detention, saw an announcement of new recommendations for reform of the system of immigration detention.

This followed from the publication on 30 November 2017 of ‘Injustice in Immigration Detention, Perspectives from Legal Professionals’, an independent report by Dr Anna Lindley of SOAS. Read the report here: http://www.barcouncil.org.uk/media/623583/171130_injustice_in_immigration_detention_dr_anna_lindley.pdf

The Bar Council, led by Andrew Langdon QC, is making a series of recommendations in light of the report, as follows:

1. A 28-day time limit for administrative detention;

2. Automatic judicial oversight of the arrangements for holding people in administrative detention;

3. Adequate legal aid for advice and representation for those held in immigration detention to challenge the loss of their liberty;

4. A ban on the use of prisons for the purposes of administrative detention;

5. Special care for vulnerable people and victims of torture held in administrative detention; and

6. Review and clarification of the criteria for administrative detention. The relevant policy and rules need to be accessible and intelligible so that all those who are affected by the exercise of powers to detain understand the reasons for the exercise of those powers and can challenge decisions where appropriate.

The recommendations are a result of Mr Langdon’s dedication to ending immigration detention during his term as Chairman of the Bar Council.  At the launch, he highlighted the lack of public awareness of those in immigration detention; the lack of informed debate; and the limitation of knowledge of immigration detention to a small number of interest groups. In his speech at the event, he referred to immigration detention as “one of the most opaque areas of [Government] administration”.

Why the focus on immigration detention? According to Mr Langdon, the public interest and the rule of law both guide the Bar Council’s work.  Indefinite immigration detention is something that “we, as lawyers, should be very concerned about.” 

The power to detain a person subject to immigration control is found in the Immigration Act 1971, with subsequent legislation building on this.  In summary, this power derives from the power to remove them from the country.  Under paragraph 16(2) of Schedule 2 to the Immigration Act 1971, the Secretary of State has the power to detain a person where there are reasonable grounds for suspecting that person is someone in respect of whom removal directions may be given.  The person may be detained pending a decision whether or not to give such directions and pending removal in pursuance of those directions.

The power to detain is also subject to the “Hardial Singh Principles”, established in the case of R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB), which are:

(i) The Secretary of State must intend to deport (or remove) the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation (or removal) within that reasonable period, she should not seek to exercise the power of detention;

(iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.

However, there is no time limit on immigration detention.  The longest recorded period of immigration detention is 9 years.

Dr Lindley’s report discloses that the UK detains around 30,000 people in immigration detention.  Just over half of those in immigration detention are not removed from the UK, but released into the community, which raises the question as to why they were detained at all.

The report highlights issues with the current system of review and challenge. Conditions of detention are also considered to be problematic, in particular for those who have mental health issues and who are survivors of torture. According to Dr Lindley, there needs to be greater scrutiny of immigration decisions and there is a need for wider public understanding of indefinite detention.

Adrian Berry, Chair of the Immigration Law Practitioners Association, said at the launch event that the issue of indefinite detention is one which should not concern only immigration lawyers.  He suggested that “you are not much of a lawyer if you are not startled by the state’s power of indefinite detention [or] if you are not perturbed by the lack of meaningful access to courts, exacerbated by the decline of legal aid.”

According to Professor David Herd of Refugee Tales, indefinite immigration detention is, by definition, inhumane.  He referred to due process, and to Magna Carta’s establishment of the principle that it is unlawful to detain someone indefinitely.  He spoke of “the profound damage” caused to those in indefinite immigration detention.

Dr Lindley recommends that we look to the courts as judicial check against unlawful detention; to society to make principled legislation; and to amend the legislation which promotes administrative detention.  Even if rights exist in legislation, they mean nothing unless those who seek to exercise those rights have the correct information and access to legal aid so that they can engage with the system.

Catherine Jaquiss is a barrister at Goldsmith Chambers, specialising in asylum and immigration law.