The use of indefinite immigration detention in the UK remains extremely controversial, what with it being the only country in the EU to use it. While the European Court of Human Rights (henceforth ECtHR) in Strasbourg had the opportunity to deem this draconian practice as being incompatible with the European Convention on Human Rights (ECHR) on more than one occasion, the majority has regrettably refrained from doing so. Notwithstanding the majority’s questionably timid approach, it will be argued that the UK’s indefinite immigration detention is incompatible with the very purpose of Article 5 of ECHR, which is to ‘protect the individual from arbitrariness’.

ECHR and Domestic Law

Although the UK has been a signatory to the ECHR since 1953, it was not until 1998 that it domesticated these rights through the Human Right Act (HRA), 1998. Since the UK is a dualist (rather than a monist) state, international law vis-a-vis international treaties (like the ECHR) cannot be invoked in domestic courts unless its provisions are incorporated through an Act of Parliament. As such, HRA is said to finally ‘bring rights home’ in that it finally enabled people in the UK to enforce rights protected by the ECHR in domestic courts themselves, instead of waiting to be heard in the highly backlogged Strasbourg Court.

Article 5 of the ECHR guarantees the right to security and liberty of a person. The article’s construction is such that it stipulates a general right to liberty which is followed by an exhaustive list of circumstances within which the deprivation of liberty is considered lawful. Article 5(1)(f) is one such ground in the list which deals with deprivations of liberty (through arrest and detention) in the context of immigration. Lawful detention under Article 5(1)(f) has two limbs: the first is for the prevention of unauthorised entries (by illegal immigrants) into a country and the second is for detaining persons in relation to whom deportation or extradition proceedings are being taken. The former limb was first adjudicated upon in the Grand Chamber as recently as 2008 in the seminal case of Saadi v UK, where a seven-day detention for sheer administrative convenience (although the majority did not admit so) was considered lawful under art.5(1)(f). The second limb was put to test in Chahal v UK, where a six year detention period of a Sikh separatist leader (who appealed against a deportation order) was astonishingly also considered lawful under Article 5(1)(f).

In the UK, the power to detain immigrants is embedded within schedules 2 and 3 to the Immigration Act, 1971 (IA), as amended by the plethora of immigration laws legislated up until 2007. This power to detain immigrants can be exercised in relation to any of three administrative functions: examination, removal and deportation. In theory, Home Office policy on detention is for it to be used sparingly, for the shortest period necessary and only as a last resort (after all reasonable alternatives have been considered). The most oft cited factors justifying detention are: a risk that the individual will abscond, commit an offence or pose danger to the public and where removal is imminent.

The Legal Reality of UK’s Indefinite Detention

UK has one of the largest immigration detention facilities in Europe with up to 3,500 migrants being detained at any given time. They are either located in former prisons or wings of existing ones and so detainees face prison-like conditions. UK conveniently opted out of EU Returns Directive, which caps detention at 18 months. Home Office statistics are open ended at best, as the cost of compiling them is considered incommensurate with any social benefit they may have. What we do know is mainly based on three monthly ‘snapshots’. In 2009 alone, 225 individuals were detained for over a year. Among the detainees London Detainee Support Group has visited, ‘188 had been detained over a year, 46 more than two years and 9 more than three, with the maximum being eight years; an Algerian plumber’. While the UK may claim that these only cover the most exceptional cases, the discreetness of the system itself means that we have nothing to test their claim against. Although immanency of deportation and absconding are used to justify detention, in reality no such factors exist for most cases. Crucially, these statistics only include purely administrative detainees i.e. immigrants serving criminal sentences are excluded.

R v Hardial Singh was the first case to circumscribe the aforementioned detention powers under the IA,  Woolf J regarding it as being impliedly limited to, inter alia, ‘a period that is reasonably necessary’ in all circumstances. In practice, the ‘reasonably necessary’ criterion has proven to be an elastic concept and hence can hardly be seen as setting exact/clear limits on detention. Notably, the Home Office need not even indicate when it expects removal to be likely, or have any assurance that removal will ever be possible. This uncertainty as to how long one will be detained induces an increasing sense of anxiety within detainees, leading to severe mental health issues. In this regard, the detainees are treated worse than prisoners in that the latter class at least knows the exact duration of their sentences. All of this is exacerbated by the fact that these detainees face abominable living conditions (e.g. physical abuse and poor medical care) that have even led to deaths, which are simply ignored. Most importantly, they receive poor legal representation, if at all.

A ‘control culture’ lies at the heart of UK’s indefinite detention regime which operates almost exclusively to unjustifiably confine those individuals who are already fleeing persecution. UK’s neighbour France limits detention to a maximum of 45 days, Italy to 60 days and Spain to 90 days, figures which put the UK’s indefinite detention regime to utter shame. Little wonder then that, the cross-party Parliamentary Inquiry earlier this year recommended a 28 day limit on immigration detention, a submission echoed by the UNHRC and HM Chief Inspector of Prisons. In the September Parliamentary Debate that followed, House of Commons passed a motion which advocated for the 28 day limit. Conservative MP Burrowes rightly emphasised that despite most detainees never been convicted of any crime they have to endure “prison-like conditions for administrative reasons”. Unfortunately, there is no political appetite for accommodating such a statutory upper limit as evidenced by the silence on the matter in the UK Immigration Bill, 2015.

ECtHR’s Permissive Approach

While considerations of proportionality and reasonable necessity are cardinal principles guiding the ECHR at most times, their role is severely marginalised with respect to Article 5(1)(f). Plainly speaking, all Article 5 (1)(f) demands (according to the ECtHR majority) is for removal proceedings to be executed with ‘due diligence’. Chahal made clear that while reasonableness is the main operative standard for detention under Article 5(1)(c) (for suspected criminals) , all that is required for detention under Article 5(1)(f) is mere action being taken with a view to deportation/extradition. The justifiability of the underlying decision to expel under domestic/Conventional law is therefore totally ‘immaterial’ under Article 5(1)(f). Furthermore, the role of proportionality has been strictly restricted to the assessment of due diligence; thereby obliterating the balancing exercise between importance of liberty and fulfilment of the aims pursued. Thus ‘due diligence’ is the only constraint on the length of detention, which is an imperiously minimal requirement as signaled by Johnston.

Courtesy: www.prisonwatchuk.com

Courtesy: www.prisonwatchuk.com

Furthermore, this restrictive view of Article 5(1)(f) by the ECtHR majority pays little heed to relevant international instruments such as Geneva Convention Relating to Status of Refugees, International Covenant on Civil and Political Rights and Vienna Convention on Law of Treaties (VCLT), as explained by Bryan and Langford. Under Article 31 of VCLT, ECHR must be read in light of present day circumstances, where a generous and purposive interpretation offers broad protection and narrow limitation of rights. No justification at all can be found for the clear disregard to these multilateral instruments or for their supposed inapplicability to the majority’s view as to the limited scope of Article 5(1)(f). Bryan and Langford further highlighted that the Chahal majority’s interpretation of ‘lawfulness’ under Article 5(4) is at odds with that of their interpretation of Article 5(1)(f). The domestic courts’ ability to review was enough to find lawfulness under Article 5(1)(f) but was insufficient for Article 5(4). This is despite the court having affirmed that the concept of ‘lawfulness’ has the same meaning for both provisions. Thus the aforementioned interpretative inconsistencies between Article 5(1)(f) and other provisions of Article 5 are at odds with the VCLT which requires the ECHR to be read as a whole, so its various provisions are harmonious with one another.

Conclusions

In conclusion, the UK’s indefinite immigration detention is a costly, inhumane and inefficient regime which categorically maltreats an already vulnerable class of people under prison-like conditions, despite their never having been convicted of any crime. This, as we have seen, signals grave human rights concerns, especially in the wake of Europe’s biggest migration crisis in history. The ECtHR majority’s overly permissive approach is not only internally inconsistent but also antithetical to any meaningful protection of from arbitrariness under Article 5 (1)(f) and thus runs counter to the overall purpose of Article 5 itself. The ECtHR must remind itself that it has a duty to uphold the rights of individuals under its jurisdiction against a signatory State, and not the other way round. Efforts have already been made at the domestic level by many to advocate for the insertion of a statutory upper limit on detention. ECtHR, as the final arbiter on human rights matters, must give UK the final push under Article 5(1)(f). That said, whether the minority judgments of today will go onto become the majority judgments of tomorrow is yet to be seen; but for the sake of present and future immigrants in the UK, it is so hoped.