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All Alone At Christmas – Migrant Detainees With Little Access To Justice

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By Oshin Shahiean of OTS Solicitors

This year, thousands of migrants will spend Christmas alone and fearful in a UK detention centre with no access to the best Immigration lawyers.

Many have been incarcerated for more than a year.

Around 30,000 people have ended up in Immigration detention centres in Britain in this year alone. Government officials have identified up to 260 as long-term detained, meaning they have been held for more than a year. The figure does not include migrants in prisons or other types of detention centres due to Immigration laws, and campaigners believe the numbers could actually be far higher.

There are a number of reasons for this shocking state of affairs. Legal aid has been drastically cut. And worryingly, detainees are often blocked from accessing legal information from the internet.

Denying detainees access to legal information - a breach of Article 10?

Article 10 of the European Convention of Human Rights protects the rights of freedom of expression and information.

It states (our emphasis):

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

A recent case decided in the European Court of Human Rights (ECHR) has opened the door for a possible challenge to be made in the UK where migrant detainees are denied the right to access certain websites that may provide them with legal support and information.

The judgment in Kalda v Estonia

The appellant was a prisoner in Estonia, currently serving a life-sentence for murder. The ECHR judgment resulted from two instances. Firstly, in July 2005, he requested access, from prison, to the Gazette, decisions from the Supreme Court and Administrative Court and ECHR decisions, all via the internet. His request was denied by the prison Governor. On appeal, the Supreme Court found the prisoner should have been able to view the Gazette online, on the basis that the prisoner had access to the paper version anyway. However, the court found that there was a contravention when it came to the online court decisions, stating that prisoners had a right to access information.

Secondly, in 2007, access to various websites was denied to the prisoner, including that of the Estonian Parliament and Council of Europe Information Office. The Administrative Court stated that the prison needed to provide access to the Council of Europe Information Office, as this website contained many cases translated from English to Estonian. The decision to deny access to the other sites was upheld.

The ECHR decision

The ECHR combined the two cases for convenience.

The applicant argued that his rights under Article 10 were violated by the prison Governor refusing to allow access to certain websites, stating that although the information could be obtained from other sources, it was difficult for him, as a prisoner, to retrieve. The Estonian government stated that by allowing access to particular websites, there was some risk prisoners could misuse them.

By a majority of 6-1, the ECHR affirmed that the issue being argued by Estonia’s best Immigration solicitors was not the ‘right’ of prisoners to access certain information, rather it was the method through which they obtained it.

The court noted that by its very nature, imprisonment involved detainees being restricted from accessing certain information in a normal way (for instance, they could not walk to their local library to read legal textbooks). It was also pointed out that access to legal information, as was being sought by the applicant held in detention, is permitted under Estonian law. Therefore, refusing to allow online access to it amounted to an interference of the applicant’s rights under Article 10.

Danish judge Jon Fridrik Kjølbro, provided the dissenting judgment. He stated that the interference of the detainee’s rights under Article 10 was necessary in a democratic society, as the risk of misuse and security breaches were significant. Judge Kjølbro also argued that the case should have been decided by the Grand Chamber.

What does this judgment mean for UK migrants currently detained?

Similar to Estonia, UK law provides migrant detainees access to certain websites but blocks others. The decision in Kalda has provided a precedent from which Immigration detainees who are denied access to legal information websites can launch a challenge in the courts.

No one should be denied access to justice and this principle includes migrants who are detained, sometimes for long periods, regardless of their Immigration status.

OTS Solicitors is one of the most respected immigration law firms in London. Our immigration team dealing with appeals comprises of Smit Kumar, Hans Sok Appadu and Maryem Ahmed, all of whom would be happy to talk to you about appealing a refusal on human rights grounds.

By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.

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