The illusory right to liberty: Improving access to immigration bail

Transcription

1 The illusory right to liberty: Improving access to immigration bail Introduction In international and domestic law, the link between citizenship and rights has traditionally provided for the differential treatment of citizens and non-citizens. Although the contemporary international human rights movement has proved to be a modern challenge to the view that rights are the privilege of citizenship, under English law the right to liberty of every individual within the jurisdiction has its origins in Magna Carta and is firmly established within our common law tradition. Writing in 1765 in Commentaries on the Laws of England, William Blackstone heralded the 'spirit of liberty' as 'so deeply implanted in our constitution, and rooted in our very soil that a slave or Negro, the moment he lands in England falls under the protection of the laws..' Indeed this was later recognised in 1772 by Lord Mansfield in the celebrated Somersett's Case, and the common law has since developed to recognise the presumption of liberty; namely that every person within the jurisdiction is entitled to their freedom save good reasons for their detention. The presumption is articulated in English law in a wealth of common law rules and statutes, including the tort of false imprisonment, the Habeas Corpus Acts and the Bail Act Its constitutional status is also expressed in Article 5 of the European Convention on 1 See, 'Intervention on behalf of Justice' (R. Singh and E. Prochaska, 2010) in WL (Congo) v SSHD [2009] EWCA Civ 441 1

2 Human Rights (ECHR), which is given direct legal effect in domestic law by the Human Rights Act The right to liberty is not absolute, but any deprivation of liberty must be in accordance with the law. Strasbourg jurisprudence has made clear however that even lawful detention should not be arbitrary. 2 Thus the automatic bail process and the general presumption in favour of release contained within the criminal law act as crucial procedural safeguards of individual liberty. Under immigration laws, however, non-nationals are routinely subject to detention, even though they are not charged with a crime, nor suspected of committing one. In these cases, the decision to detain is purely administrative, yet it results in the imposition of a de facto punitive sanction: detention. The contemporary tools of immigration law enforcement now resemble the controls of the criminal justice system, 3 a phenomenon which has serious implications for the human rights of immigration detainees. The detention network, just like the penal estate, has rapidly expanded over the past decade. Meaningful reform of the detention system is obstructed by the political fallout of releasing irregular migrants, or ex foreign national prisoners into the community. It is therefore apparent that immigration detainees right to liberty, though guaranteed in law, is hardly ever realised. In reality immigration detainees face huge obstacles securing their release. The procedural safeguards of the criminal process, notably judicial review of detention through bail, 2 Litwa v Poland (2001) 33 EHRR 53 3 Foe more on the link between the 'New Penology' and the immigration detention, see Cornelisse, G.(2010) 'Immigration Detention and Human Rights: Rethinking Territorial Sovereignty', BRILL 2

3 are frequently inaccessible in the immigration context. This essay argues that the limited judicial oversight of immigration detention is incompatible with established common law principles and render immigration detainees' right to liberty meaningless. The Immigration Act 1971 should be amended to include a statutory presumption in favour of release, similar to that found in the Bail Act The law should also provide for a system of routine bail hearings. This is essential in view of concerns that an increasing number of people, including vulnerable individuals, are being deprived of their liberty following decisions which appear to have paid insufficient regard to the common law presumption in favour of release. 4 I. The case for more extensive judicial oversight of detention (i) Increasing use of detention The 1971 Act first introduced administrative detention for those who had been denied entry into the UK. It applies to those who are 'non-patrial' or 'not citizens settled in the UK' 5 and provides for the 'detention of persons pending examination or pending removal from the United 4 See Bail for Immigration Detainees (2010), 'A nice judge on a good day: immigration bail and the right to liberty Judge on a good day'. 5 section 1(5) and (2) 3

4 Kingdom.' 6 Detention may also be used if the authorities believe a person will fail to comply with conditions attached to temporary admission or release. 7 The different categories of people liable to be detained are therefore numerous and may include asylum seekers, 'overstayers', and foreign national prisoners awaiting deportation. 8 The decision to detain is an administrative power exercised by immigration officials. 9. The decision to detain must be exercised in the interests of maintaining effective immigration control. In addition, detention must not only be based on statutory powers, it must also accord with domestic and ECHR jurisprudence and stated policy. 10 According to UKBA enforcement guidance, there is a presumption in favour of temporary admission or release, and alternatives to detention should be used wherever possible 11. Over the past decade, immigration policy has become increasingly intertwined with security concerns, a development which has had a notable impact on the numbers in detention. Successive governments have adopted legislation aimed at securing the UK s borders. Consequently the detention network, like the penal estate, has expanded considerably - at a rate 6 Section 4(2)(d) 7 UKBA, Enforcement Instructions and Guidance, There categories often overlap. NGOs and campaign groups have reserved particular criticism for the continued detention of vulnerable groups such as asylum seekers and children. Although the coalition government pledged to end child detention in May 2010, the independent watchdog released a report in late 2011 which highlighted the problem of hidden children within the detention estate. 9 The Nationality Immigration and Asylum Act 2002 extended powers to authorise and prolong detention, allowing Home Office caseworkers to decide to detain someone. 10 UKBA, Enforcement Instructions and Guidance, Ibid. 4

5 perhaps not contemplated when the 1971 Act came into force. While this trend is not exclusive to the UK, it is difficult to overlook the fact that we have one of the largest networks of detention facilities in Europe. 12 Although the law does not permit mandatory detention, as things stand the current trend shows no sign of abating. The growing capacity of immigration removal centres is testament to government s over-reliance on detention. As more places become available, there is a heightened risk that immigration officers will fail to give proper consideration to alternatives to detention, even in cases where there are substantial grounds in favour of release. (ii) Limited checks on detention The rate of detention has had an adverse impact on the effective administration of the immigration estate, which has resulted in longer periods of detention. Each year, hundreds of people in the UK are deprived of their right to liberty indefinitely, even when there is no reasonable prospect of removal. 13 Detention of persons awaiting removal is permitted on relatively broad grounds under Article 5 14 ; all that is required is that action is being taken with a view to deportation. There is no requirement that removal be imminent, however detention for immigration purposes must comply with the Hardial Singh principles which prohibit the use of detention except to facilitate deportation or removal, and detention for an unreasonable length of 12 'Immigration Detention in the UK' (2012), Migration Observatory, University of Oxford 13 See Abdi & Ors v Secretary of State for the Home Department [2008] EWHC 3166 (Admin) 14 In Saadi v UK (Application no /03) the Court held that the detention of an asylum seeker for a week, solely for administrative convenience was not disproportionate. 5

6 time without realistic prospect of removal in a reasonable period. 15 The Home Office is under an obligation to act with reasonable diligence and speed in effecting removal. 16 Domestic courts have been critical of government for allowing detention to continue when there is no prospect of removal, and there have been a number of successful claims of unlawful detention on this basis. However, the vast majority of detainees remain trapped in a vicious circle, with no guarantees of effective judicial oversight of their detention. Lodging judicial review or habeas corpus claims require good quality legal assistance, something which the majority of detainees cannot access. The expense and complex nature of these procedures also make them inaccessible. Thus the issue of whether removal is being pursued with due diligence is only examined in a small number of cases. 17 (iii) Effects of detention The effects of detention are devastating and can have a significant impact on the mental and physical well-being of detainees. Living in a constant state of uncertainty can manifest itself in 15 R. v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704. See also Massoud v Malta (Application no /08), where ECrtHR held that detention may fall foul of Article 5 if the authorities fail to pursue deportation with due diligence. 16 Ibid. 17 Although UKBA is required to conduct monthly reviews of detention in each case, these are not subject to judicial oversight. From this author s experience as a caseworker for Bail for Immigration Detainees, it is often the case that these reviews regularly fail to take account of any change in the detainee s circumstances. 6

7 symptoms of anxiety, depression, post-traumatic stress disorder and self-harm 18 Of late, academics have begun to turn their attention to what has been termed as the 'creeping criminalisation' of immigration, 19 and in so doing question whether administrative detention is proportionate to its aims. While it is not meant to be a punishment, research on how detention is experienced by detainees highlights the ways in which the traditional distinction between administrative and punitive detention is becoming blurred. 20 Those detained under immigration law are nonetheless disadvantaged relative to prisoners; typically unable to access the same legal and normative safeguards. Unless a detainee applies for bail, or if their individual circumstances give rise to a claim for unlawful detention, the government is never required to justify their detention. II. Specific area in need of reform: Bail (i) Bail hearings 18 See Steel et al. (2006) Impact of Immigration Detention and Temporary Protection on the Mental Health of Refugees, The British Journal of Psychiatry; 188 (1), pp Flynn, M. (2012) 'Who must be Detained? Proportionality as a Tool for Critiquing Immigration Detention Policy', Refugee Survey Quarterly 31(3): Bosworth, M., '(2011) Human Rights and Immigration Detention in the UK', in Dembour, M-B. and Kelly, T. (eds.), Are Human Rights for Migrants? 7

8 A bail application to an independent immigration judge is the most accessible way for most detainees to seek their release from detention. 21 Bail remains a crucial check on the use of immigration detention in the UK. The right to apply for bail applies to almost everyone in immigration detention. 22 However, there is no right to an automatic bail hearing. Instead, it is incumbent on the applicant to know about bail and to make an application. This is can be onerous on an individual detainee, particularly in light of the systemic barriers such as a lack of knowledge about bail, 23 and the difficulty accessing quality legal advice. The absence of automatic review of detention also fails to take into account the vulnerable position of detainees, many of whom may not have the capacity to assert their rights. 24 Their position is analogous to that of the criminal defendant facing the machinery of the criminal justice system. In the criminal context however, an application for bail is routinely heard at the first hearing before a magistrate. Under the Bail Act 1976, there is a requirement for regular review and monitoring by the courts, a system which ensures that those presenting sufficient risk of reoffending, absconding or interfering with justice are remanded in custody, and those who do not present such risks, or those risks can be managed successfully by bail conditions, will be granted bail. In addition, the 21 Bail for Immigration Detainees (2010), 'A nice judge on a good day: immigration bail and the right to liberty Judge on a good day'. Detainees may also be released by the decision of the Secretary of State or by making a claim for unlawful detention; 22 The only group who still cannot apply for bail (i.e. there is no jurisdiction) are those who are held pending examination, who have not yet been in the UK for 7 days. 23 Although UKBA is obliged to inform detainees of their right to apply for bail, charities such as BID report that they are often contacted by detainees asking whether they can apply for bail. 24 S, R (on the application of) v The Secretary of State for the Home Department [2011] EWHC 2120 (Admin) where a High Court judge ordered release on bail despite earlier substantial evidence that the detainee had severe mental health problems. 8

9 right to bail exists independently of application for bail, which means the court is still required to consider bail irrespective of the defence stance. (ii) Presumption in favour of release The differences between criminal and immigration bail do not stop at the door of the court. Subject to various exceptions, there is a statutory presumption in favour of bail in criminal cases. 25 This rebuttable presumption in favour of bail reflects the common law presumption in favour of liberty. Accordingly a prosecutor may only successfully oppose bail by establishing substantial grounds to overturn the presumption. By contrast, there is no statutory presumption in favour of release in immigration detention cases, as re-stated in the 2011 Revised Immigration Bail Guidance 26. Although there is a presumption in favour of temporary admission or release contained within UKBA s guidance, 27 recent cases have provided examples of the adoption of secret UKBA policy which contradicted the official presumption in favour of release. 28 It is worth noting that in these cases bail had been refused until the case came before a more senior judge. When bail was eventually granted, the applicants responded positively and complied with all conditions. It is therefore clear that the presumption in favour of release expressed in UKBA 25 s Act 26 Paragraph Enforcement Instructions & Guidance Chapter , , and BA, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2748 (Admin) 9

10 guidance does not in itself sufficiently protect detainees right to liberty. III. Proposal detail The Immigration Act 1971 should be amended to allow for automatic bail hearings for immigration detainees. As this essay has sought to demonstrate, such reform is necessary to ensure that there is a more extensive judicial element in the detention process. The Immigration and Asylum Act 1999 provided for a system of routine bail hearings for all those detained under IA 1971 powers, except for those recommended for deportation by a criminal court. 29 However, the Act was later repealed by the Nationality, Immigration and Asylum Act The changes contemplated by the 1999 Act should be implemented. Research from 2004 estimated that automatic bail hearings would result in many detainees being released within eight or 36 days of detention. 31 Provision should be made for automatic bail hearings after the first 29 s.45. Part III of the 1999 Act also contained measures which would have made changes to the statutory right to bail. 30 The government, despite being sufficiently concerned over detainees' rights in 1999, concluded in 2002 that automatic hearings would create a 'logistical nightmare'. Official Report, Commons, Standing Committee E, 14/5/02; col Ibid. 10

11 seven days of detention, and again after thirty-five days. However, this right should be extended to all those detained under IA 1971 powers. The extension of right to apply for bail to those liable to deportation was contained in IAA It therefore would make little sense to exclude them from the automatic right to apply for bail. The right to apply for bail at other times would of course remain. There should be a statutory presumption in favour of bail for immigration detainees. Although the 2011 Guidance reiterates the common law presumption in favour of bail, the evidence suggests that this does not translate into a presumption in favour of liberty in individual decisions. 33 A statutory presumption in favour of bail would, like in the criminal context, reaffirm the common law presumption of liberty. It is interesting to note that reservations were expressed when the Bail Act 1976 introduced the statutory right to bail, as it was felt the right was implicit. However, even though there was good bail practice before the 1976 Act came into force, it was not universally followed and was lacking in statutory authority. 34 Similar observations may be made in respect of immigration bail, though the evidence of good practice is harder to find. The strength of this proposal is that rather than being guided by the statutory power to detain, immigration judges hearing bail applications would be obliged to give due 32 s BID, fn S. Factor (2004) 'The Right to Bail' OUP. 11

12 weight to a statutory presumption in favour of release. Conclusion This essay has sought to demonstrate that the theoretical safeguards extended to immigration detainees do not work in practice. Poor judicial oversight of decisions has led to increasing arbitrariness, a state of affairs which is a radical departure from our common law tradition. As noted by one author, the right to liberty is, 'a right that the liberal legal order has staked much of its legitimacy upon defending'. 35 Accordingly it should be extended to every person within the jurisdiction, regardless of their status. It is acknowledged that the weaknesses of the bail process are just one aspect of the wider legal and social problems associated with immigration detention. Nonetheless, it is submitted that making substantive changes to immigration bail is a modest proposal which has significant practical and normative value. Such reform would not only reassert our commitment to civil liberties, it would also put in place important legal mechanisms which would effectively aid individuals in securing their release. Word count: 2, Wilsher, D. (2012) Immigration Detention: Law, History and Politics, CUP. p. xiii 12