Chapter 15

15.2.1 Human Rights Act

In R (on Application of Beecroft), referred to below at 15.7.2, a failure to follow the detention centre rules, which required that the claimant be medically examined on arrival, made the detention unlawful in breach of Article 5.

15.2.2 Detention of asylum seekers

Thomas Hammarberg, the Commissioner for Human Rights of the Council of Europe, in a report following his visit to the UK in 2008 (CommDH(2008)23 Strasbourg, 18th September 2008) made a number of critical comments about the UK’s practice of detaining asylum seekers. He was concerned about the UK’s commitment to increasing use of detention, and urged the opposite – reducing it. He recommended initial and ongoing training in human rights protection for all immigration staff.

15.5 Detention pending removal or deportation

In The Queen on the Application of K v SSHD [2008] EWHC 1321 (Admin) Collins J emphasised that detention should only be used as a last resort. Detention of the claimant here was initially unlawful in that removal directions had not been served so removal was not imminent, and there was no evidence that this claimant was likely to abscond. This did not mean that in other cases detention before the service of removal directions would be unlawful if the claimant were likely to abscond on receiving the directions. This detention was unlawful throughout for an additional and, it is to be hoped, unusual reason. The adjudicator had decided that the claimant was at risk in Irbil because he was in conflict with the Kurdistan Democratic Party and at risk from them. However, he had refused asylum because internal relocation was possible. The Secretary of State however proposed to remove K to Irbil. Collins J recommended that those who take detention and removal decisions should have some familiarity with the tribunal decision, at least to the extent of knowing that there was a decision on internal relocation. As removal to Irbil would be unlawful, the detention to effect it was also unlawful.

In Abdi, Ashori, Madani, Mighty & Lumba v SSHD [2008] EWHCA 3166 (Admin) the Court found that the Secretary of State’s detention policy adopted in April 2006 with regard to Foreign National Prisoners was unlawful because it entailed a presumption in favour of detention, which was contrary to common law principles and paragraph 2 of Schedule 3 to the 1971 Act as interpreted in Sedrati. Additionally it was unlawful between April 2006 and September 2008 because during that time it was insufficiently published or accessible.

Although the policy was unlawful, the detention of individuals would only be unlawful if the application of the policy had in fact caused their detention. This was held not to be so in these cases, where the decision to detain was held to have been properly taken, without reference to the presumption (though further facts were to be found in the case of Mr Abdi).

15.7 Exercise of the discretion

In R (on the application of MT) v SSHD, GSL UK Ltd, Nestor Health Care Services plc [2008] EWHC 1788 (Admin), one of the questions was whether the Home Office should make inquiries promptly on a claimant’s arrival about whether they had been tortured. The view of the Medical Foundation was that the question should be asked at an early stage. Home Office policy was not to do so. The court held that this policy was lawful in public law. Procedural fairness also did not require the Secretary of State to inquire about torture as an allegation of torture would not necessarily prevent someone from being detained in the fast track, as this claimant had been. Accordingly the Secretary of State did not act unlawfully in this case by not proactively inquiring as to whether the claimant had been tortured.

15.7.2 Content of guidance

R (on Application of Beecroft) v SSHD [2008] EWHC 364 (Admin) followed D and K with the outcome that the High Court found that a failure to examine the claimant, who stated on arrival that she had been tortured, and a failure to refer to the Medical Foundation, made her detention unlawful and in breach of Article 5. The detention centre staff had not complied with Detention Centre rules 34 and 35.

By way of comparison with Beecroft, in SK (Zimbabwe) v SSHD [2008] EWCA Civ 1204 the detention of the claimant had not been reviewed at the intervals required by the Detention Centre rules, nor by a person at the correct level of seniority or according to the correct criteria. However the Court held that these rules were a mechanism for attempting to ensure that detention decisions were not arbitrary and that they were in accordance with common law and Article 5 ECHR. They were not themselves the actual principle of lawfulness and against arbitrariness. Thus, while a breach of detention centre rules might attract a remedy, it did not automatically render the detention unlawful where it was plain (as here) that if the reviews had been properly conducted continued detention would have been warranted.

15.7.2.1 Application of criteria

In Gichura v Home Office and another [2008] EWCA Civ 697 the appellant, as result of a spinal injury, was paralysed in both legs and used a wheelchair at all times. He made complaints under the Disability Discrimination Act about conditions and facilities for him in immigration detention, including the time for which and conditions in which he was kept waiting, access to toilet and bathroom facilities, access and egress to rooms in the detention centre, provision of suitable bedding and provision of medical services. He commenced an action in the County Court under the Disability Discrimination Act against Kalyx, who operated Harmondsworth Detention Centre on behalf of the Home Office, and against the Home Office itself. On application of both defendants, this claim was struck out at the County Court. He appealed to the Court of Appeal and before the hearing the Home Office negotiated and accepted that detention facilities could be services within the meaning of s.19 Disability Discrimination Act. Kalyx, however, continued to dispute that. The Court of Appeal held that the governmental function of immigration enforcement could be carried on at the same time as provision of services, and that Kalyx was a provider of services to Mr Gichura. His action under the DDA could proceed.

15.8 Detention of families

Thomas Hammarberg, in the report mentioned above, urged the UK to find alternatives to detaining people under 18, withdraw the immigration reservation to the Convention on the Rights of the Child, and review constantly and systematically the welfare provision.

15.9 Length of detention

The Court of Appeal in R (on the application of Mamki) v SSHD [2008] EWCA Civ 307 held that the detention of the appellant, although lengthy, was still lawful. He was detained pending deportation for criminal offences, at the expiry of his prison sentence. He had been so detained since 27th November 2006. The reason for delay was said to be that the Secretary of State deemed it not safe to provide an escort to Baghdad, although Mr Mamki also had a pending appeal which had been adjourned. The Court was led to finding the detention still lawful by the combined risk of absconding and of re-offending. They were also influenced by the fact that although there was no foreseeable prospect of escorting to Baghdad becoming safe, this could change.

This was by way of contrast with The Queen on the Application of A and others [2007] EWHC 142 (Admin) in the High Court where the claimants remained detained pending obtaining travel documents to effect their return to Algeria. The Court was satisfied that in the case of three of the claimants the fact that the Algerian embassy had not supplied such documents was not due to any default of theirs. They had complied with the requests for information made of them. The matter was no longer in their hands and it was clear that there was nothing that could be done to achieve compliance by the Algerian authorities. Their detention had become unlawful as there was no prospect of their removal being achieved.

Thomas Hammarberg, in the report mentioned above, recommended a maximum time limit for detention be introduced. There have been numerous cases challenging the length of detention, though the applicable principles of law have not changed.

15.12.1 Detention centres as public authorities

The repercussions of devolving the running of detention centres to private bodies are becoming apparent, both in law and practice.

By way of example, in MT, referred to above, Nestor Health Care Services was found to be in breach of the Detention Centre rules in not giving the claimant a medical examination within 24 hours of arrival. The Secretary of State was responsible for this breach as the second defendant was the Secretary of State’s agent and the third defendant their sub-contractor.

Following the fire at Yarl’s Wood detention centre in 2002, the operators of the detention centre sought to place a share of the responsibility on the police. In the Commercial Court Beatson J held that the state through the Home Secretary gave to Yarl’s Wood Immigration Ltd and GSL responsibility for maintaining security and order within Yarl’s Wood. The Immigration and Asylum Act 1999 and the Detention Centre Rules 2001 gave YWIL and GSL coercive powers for that purpose. Accordingly they were acting as public authorities exercising powers of the state. Additionally, the police force remained under its fundamental duty to maintain order in its area, which included within the detention centre. However, these public law responsibilities of YWIL and GSL had an impact on the discretion the police force had in deciding how to fulfil its duty to maintain order within the centre. This was a preliminary issue and so the final outcome is not yet known.

Reading list:

London Detainee Support Group, Detained Lives: The Real Cost of Indefinite Immigration Detention (2009)
O'Nions, Helen, 'No Right to Liberty: the Detention of Asylum Seekers for Administrative Convenience' European Journal of Migration and Law (2008) Vol. 10 no. 2 pp. 149-185

View print version

Oxford University Press, Online Resource Centre, Chapter 15.