By Oshin Shahiean of OTS Solicitors
The United Kingdom is the only country in the European Union that has no statutory time limits on Immigration detention. The UK courts up until now, were finding longer periods of Immigration detention permissible, for example in R (on the application of Muqtaar) v Secretary of State for the Home Department  EWCA Civ 1270, the Court of Appeal declared a detention of three and a half years was lawful.
However, the recent decision of JN v United Kingdom (37289/12)  All ER (D) 142 (May) the European Court of human rights (ECtHR) held that long periods of detention are likely to violate Article 5(1)(f) of the European Convention on human rights (ECHR).
Article 5 of the ECHR reads:
“Article 5 – Right to liberty and security'
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”
The facts of JN v United Kingdom
The applicant was a failed asylum seeker from Iran who had been incarcerated for indecent assault and was detained by the Home Secretary to await deportation.
During his detention, the applicant persistently refused to co-operate with the authorities in their attempts to effect a voluntary return to Iran. After two years and eight months of detention, the Administrative Court ordered his release but dismissed an application for judicial review.
The applicant subsequently failed to comply with the conditions of his release and was detained again for almost two years. The Administrative Court held that the final three months of this term of detention had been unlawful because the Home Secretary had not acted with reasonable diligence and expedition.
The applicant complained to the ECtHR that the UK’s system of Immigration detention fell short of the requirements of ECHR, Article 5(1)(f) on account of the absence of fixed time-limits and automatic judicial review. He also complained that the length of his detention exceeded what was reasonably required for its purpose.
Lengthy Immigration detentions unique to the UK
Bar the UK, all EU Member States have signed the Returns Directive 2008/115/EEC, which sets a maximum time limit of six months in detention prior to removal, or 18 months where the detainee fails to co-operate.
In January 2016, in a report commissioned by the Home Secretary called for a time limit to be imposed on the detention of Immigration detainees. The report, put together by the former Prisons and Probation Ombudsman, Stephen Shaw, made 64 recommendations, with Mr Shaw commenting:
”Most of those who have looked dispassionately at Immigration detention have come to similar conclusions: there is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform.”
The report also highlighted the damage detention can do to the mental health of detainees.
Following recommendations from the report, the new Immigration Act 2016 provides for a new limitation on the detention of pregnant women and for, as yet unpublished, guidance on the detention of vulnerable persons. Both provisions come into force on 12 July 2016, pursuant to the Immigration Act 2016 (Commencement No 1) Regulations 2016.
The ECtHR Decision
The ECtHR ruled that the Home Office had not acted with sufficient due diligence in pursuing the applicant’s deportation, while continuing to detain him, which resulted in a violation of ECHR, art 5(1) in respect of the 15 months of detention before the final three months which the Administrative Court had found unlawful. The court awarded the applicant compensation of €7,500 and €10,000 in respect of costs and expenses.
Consequences of the decision
This new case makes it clear to the UK courts that lengthy periods in detention are likely to violate ECHR, Article 5 and so be unlawful in domestic law, even in cases where the applicant is being un-cooperative and difficult.
This case, combined with Stephen Shaw’s report, highlights how outdated the UK’s detention process is. New professional and academic insights into the impact of detention on the mental health of vulnerable migrants, along with the general acceptance by society that lengthy detentions, with no date given for release, is not an acceptable practice in the 21st century, mean the Home Office will have to raise its game or risk the UKs reputation as a country which honours and respects the human rights of all people.
The courts to, will have to cease sitting on the fence as they have done in cases such as Magteer and declare ‘enough is enough’ in such circumstances. There comes a time where it is abhorrent that a person should be left incarcerated with no release on the horizon and no hope for the future.
The Home Office has well exceeded its boundaries on this issue.
Based in London, OTS Solicitors specialises in Employment and Immigration law. Our expert team are committed to delivering the best results for our Employment and Immigration clients. If you wish to receive legal advice regarding detention or deportation, please phone our office on 0207 936 9960 to make an appointment.
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Posted on: Thursday, 02 June, 2016