Critical Appraisal of Time Limits in the UK Immigration Detention System

Introduction

At this time, time limits in immigration detention scheme are only notified for certain categories of persons, such as pregnant women and families with children; for such individuals, the time limits specified are detention for up to 72 hours, or 7 days with ministerial authorisation. For all other detainees, there is no upper time limit for immigration detention, which means that for such detainees detention may be thought to be indefinite. The UK law under which such situation occurs was challenged before the European Court of Human Rights (ECtHR) under the Article 5 of the European Convention of Human Rights (ECHR). However, the court held that the lack a time limit in the UK’s immigration detention system did not breach Article 5. The ECtHR was of the view that because there were other safeguards within the system against arbitrary detention, the regime in the UK could be said to be in conformity with the ECHR, Article 5. For individuals who are facing such situations, seeking legal advice and assistance from reputable sources like UK Dissertation Help can provide the most valuable guidance.

This essay critically appraises the lack of time limits for immigration detention as are currently in effect in the UK immigration law. The essay argues that the lack of time limit although accepted by the ECtHR to be in consonance with the Article 5, in an unfair and unjust provision and not even in alignment with the jurisprudence on detention developed by the English courts.

Immigration detention: a brief overview

Immigration detention is one of the different legal and policy responses to illegal immigration in the UK while there are certain restrictive controls under the Immigration Act 2016 other than immigration detention. Even prior to the Immigration Act 2016, the application of detention for foreigners was permitted in the UK; for instance, Aliens Act 1905 provided that in the event that a Court allowed expulsion of an alien (foreigner), then such individual would be committed to the prison until the Secretary of State orders with respect to expulsion are received by the prison authorities. There were other laws made over a period of many decades when such laws were made that allowed the administrative authorities to detain immigrants. Therefore, the law on immigration detention at present time is grounded in historical events and laws. At the core, immigration detention can be described as a restrictive feature. Consequently, there is a question on how far such laws can be compatible with human rights; in particular, the question on lack of upper time limit becomes significant.

It has been argued that these restrictive measures have been adopted for the purpose of making immigration to the UK less attractive and also to deter illegal immigrants from entering into the UK. Nevertheless, immigration detention has been seen as a response that blurs the lines between punishment and immigration control because undocumented immigrants are subjected to conditions akin to imprisonment. However, it is also to be noted that the UK is not alone in making a law and policy response in the nature of immigration detention as it is now a common practice in many western countries.

1. J.N. v. United Kingdom, Application No. 37289/12, 19 May 2016.
2. Ibid
3. Stephanie J. Silverman, “Regrettable but necessary?” A historical and theoretical study of the rise of the UK immigration detention estate and its opposition’ (2012) 40(6) Politics & Policy 1131.

One of the problems is that the regime of immigration detention does not differentiate between undocumented economic immigrants and those who are fleeing their nations due to war, environmental issues, or persecution, which then exposes the regime of immigrant detention to criticism in human rights contexts, which then makes provisions such as indefinite detention more open to censure. In this context it has been noted that “detention imposes serious hardships by its nature, depriving individuals of the ability to work and earn income, attend school, and maintain relationships.” In the Centres of detention (IRCs) in Britain, the demography of detainees includes asylum seekers, visa over-stayers, undocumented migrants, and other such migrants who have broken their Visa conditions or have entered into the UK illegally. Therefore, there are individuals who are asylum seekers who are subjected to detention in the same way as others.

Indeed, in the UK, the application of the provisions of immigration detention itself has been criticised because the provisions of the Immigration Act 2016 deals with both illegal immigrants and forced migrants in the same manner including with regard to subjecting immigrants to detention. To summarise this point and put it in the perspective of this essay, it can be said that when the regime of immigration detention itself is critiqued on the basis of its propensity to create unjust and unfair similarities in outcomes for both illegal immigrants and forced migrants, the specific provisions of the immigration detention regime then become even more open to critique on the basis of their compatibility or lack of it with the human rights principles. It is also in this light that the lack of time limit definitions in the detention regime need to be considered. Or in other words, does the omission to prescribe an upper time limit for immigrant detention create an unfair and unjust situation especially for forced migrants? Or, conversely, it may be asked whether the ECtHR’s position that the regime is in consonance with ECHR Article 5 closes further scrutiny of the provision in light of fairness and justice.

Lack of time limit: fair or just?

It can be argued that the very basis for the ECtHR’s decision in favour of lack of time limit in immigration was guided by a misapprehended reasoning that the immigration detention regime has included within itself relevant safeguards. It would be useful here to note the “Hardial Singh” principles, which were laid down in R v Governor of Durham Prison, ex p Singh because the inclusion of these principles in the immigration detention regime was one of the reasons why the ECtHR found that the lack of time limit does not make the regime incompatible with the Article 5 of the ECHR. Article 5 of the ECHR provides that individuals have the right to liberty and security of person. It is further provided that individuals should not be deprived of liberty except in accordance with a procedure prescribed by law and detention is permitted under prescribed conditions in Article 5 itself. Therefore, it would be relevant how Article 5 is engaged in immigrant detention.

1. A Kalhan, ‘Rethinking Immigration Detention’ (2010) 110 Columbia Law Review Sidebar 42.
2. Ibid
3. Ibid, p.46.
4. M Bosworth, Inside Immigration Detention (Oxford: Oxford University Press 2014).
5. Joe Crawford, Sharon Leahy, Kim McKee, ‘The Immigration Act and the ‘Right to Rent’: exploring governing tensions within and beyond the state’ (2016) 10 (2) People, Place and Policy 114.

In the Hardial case, the Woolf J laid down certain common law restrictions on the powers of the Secretary to the State in cases of detention pending deportation; such restrictions are now called the “Hardial Singh” principles. In a more recent case, the Supreme Court summarised the Hardial Singh Principles as follows: first, that the Secretary must intend to deport the person and use the power to detain for that purpose only; second, that the period of detention is reasonable in all the circumstances; third, that the Secretary refrain from exercising the power of detention if it becomes apparent that the he will not be able to effect deportation within a reasonable period; and lastly, that Secretary should act with reasonable diligence and expedition to effect removal of the detainee.

The Hardial Singh” principles specifically note the need to ensure that the detention is for a reasonable period of time and that if the Secretary of State is of the view that the deportation cannot be effected within reasonable period then he shall avoid detention of the person concerned. It is difficult to reconcile this with a view that indefinite detention or the lack of time limits for detention, is compatible with the principles laid down in Hardial. On the contrary, there is some evidence to suggest that the English courts have been seized of the fact that immigration detention can be indefinite (thereby precluding reasonable period of detention) as evident in the Court of Appeal case of Fardous, where the court held that even the lack of guidelines in the immigration detention regime about what would be reasonable period of detention was defensible because if such guidelines are made then the judges may by their orders incentivise detainees to not cooperate. The reasoning of the Court of Appeal appears to be based on the desire to avoid incentivising detainees for non-cooperation; on the other hand, it can be argued that the lack of time limits incentivises the officers or authority to not progress the cases in time as discussed below.

A recent report by the Joint Committee on Human Rights has taken a critical view to the lack of time limit in the current regime of immigration detention in the UK. The report posited the view that the lack of time limit for which detainees can be detained exposes the detainees to immigration control without sufficient protection against arbitrary detention. The report also noted that the UK was the only country in Europe at the time that did not impose time limits on immigration detention. What is important in the context of the current essay is that the Joint Committee on Human Rights argued that in the absence of time limits, the officials in charge of immigration detention cases did not have sufficient incentive to progress cases as quickly as possible and considering the wider problems associated with the lack of time limits in immigration detention, the Joint Committee recommended that the detainees should not spend more than 28 days in detention. Furthermore, the Joint Committee sought judicial oversight for cases where the Home Office may need more time to process the cases, meaning that the Home Office apply to a judge for extension of the detention for up to a further 28 days.

1. R v Governor of Durham Prison ex p. Hardial Singh [1984] 1 WLR 704.
2. J.N. v. United Kingdom, Application No. 37289/12, 19 May 2016.
3. Lumba v. Secretary of State for the Home Department (2011) UKSC 12.
4. Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931.
5. Joint Committee on Human Rights, Immigration detention Sixteenth Report of Session 2017–19 (HC 1484, Parliamentary Copyright House of Commons 2019).

The criticism of the UK immigration law has also been seen in a memorandum by Council of Europe’s Commissioner for Human Rights of March 2016, which among other things, noted that it was concerned with the lack of time limits for detention of immigrants. The Memorandum noted that such harsh policies lend to creation of stigma around such vulnerable immigrant groups who may have come into the UK because they are trying to escape human rights crises or persecution in their own countries. Because the Immigration Act 2016 does not clearly provide for upper time limit for detention, the Council of Europe’s Commissioner for Human Rights was of the view that there is a direct contradiction between the Immigration Act and the UN High Commissioner for Refugees (UNHCR) guidelines on detention. The evidence presented by the Commissioner showed that for the year ending September 2015, 8% immigrants were detained between one and two years and some detainees were even detained for two years or longer. Therefore, the lack of time limit on detention is also not in consonance with the international refugee law.

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Anthropological research study on the effects of indefinite detention on immigrants has suggested that such exceptional state practices like detention operate under extreme regulation, and therefore, the individuals who experience such practices feel the power of state heavily. In this research study, the researcher found that the Immigration Removal Centres in the UK were similar to prisons; there were patrolling guard dogs outside the centres and high razor wire topped fences, which were conditions similar to a prison. Therefore, immigration detention makes conditions of detainees similar to prisoners. In such situation, it can be argued that it is unfair and unjust that individuals be subjected to prison like conditions for an indefinite time period when even prisoners are informed about the period of their incarceration. Unfairness in this context can be seen in the manner of subjecting detainees to prison like conditions for an indefinite period of time.

1. Ibid
2. Council of Europe’s Commissioner for Human Rights, Memorandum on the human rights of asylum seekers and immigrants in the United Kingdom (EU 2016).

Melanie Griffiths, ‘Living with uncertainty: Indefinite immigration detention’ (2013) 1(3) Journal of Legal Anthropology 263.

To extend this theme this further, immigration detention subjects a detainee to prison like conditions without being punitive in the first place. To explain this further, immigration detention is not punishment in the real sense and is not punitive in nature. Unlike, punitive law, immigration detention is part of an administrative power. Furthermore, immigration detention is not in the nature of a sentence, and this may be directly related to the absence of maximum term time limit like a sentence has. Therefore, even while there are punishment like conditions attached to immigrant detention, the latter is not in the real sense part of a punitive scheme of law. This lends to the unfairness element into the scheme of immigration detention because detainees do not have the kind of safeguards that convicted persons do have.

In other words, the unfairness and unjustness of lack of time limit in immigration detention also comes from the fact that while detainees are subjected to similar conditions of incarceration as prisoners, they are not provided similar safeguards, including judicial oversight and time limits of detention. In the case of immigration detention, oversight of detention is done by the UK Border Agency (UKBA) civil servants and not the judiciary. Therefore, there is a parallel legal system that is applicable for the application of immigration detention, which makes the position of the detainee especially untenable in terms of access to fair and just outcomes. Against this background, it can be argued that the absence of time limit for immigrant detention is unfair and unjust.

Furthermore, indefinite detention is unfair and unjust because it has element of unpredictability and uncertainty. The detainee has no certainty for how long they will be detained and such detention could last a long period or a short period of time which means that it is unpredictable. This point has been well conceptualised by Sarah Turnbull, who notes the following:

“A defining feature of immigration detention in the United Kingdom is its indeterminacy; that is, there are no statutory constraints on the length of time an individual can be detained. As such, detention is uncertain and unpredictable; it may last a few hours or a few days, or weeks, months, and even years. Consequently, the lived experience of detention is one of waiting: waiting to know both when and how detention will end (i.e. release to the community or expulsion from the country). The denial of liberty and the conditions of confinement present additional challenges for detainees, as they must contend with significant limits to their agency as they await the decisions of a variety of other actors.”

1. Ibid
2. Ibid
3. Sarah Turnbull, ‘Stuck in the middle’: Waiting and uncertainty in immigration detention’ (2016) 25 (1) Time & Society 61.

The above statement is a reflection on the nature of immigrant detention as an uncertain and unpredictable provision. This does not conform with the European Union Returns Directive, because the British government refused to implement this Directive. The Directive limits the duration of detention to a total maximum of 18 months and therefore provide for an upper limit for the detainee.

The unfairness association with immigration detention in general can be related to how it has been generally used as a method of social control and with reference to members of a particular community. Especially after the September 11, 2001 terror attacks, an association has been drawn between Muslim community and terrorism, which has led to demands of more social control mechanisms to prevent members of Muslim communities from coming to the UK. In this context, immigration detention has also been explained by one author as a form of social control of the nature of sanctions, the other two being destitution and deportation, with Muslims being the most affected by it. In other words, can it not be argued that the lack of time limit in the immigration detention regime may also be consciously or unconsciously used as a deterrent to Muslim immigrants. Furthermore, if immigrant detention is a method of social control as Siriyeh has argued, then the objective of such social control is to “regulate the conduct of the people, who are seen as deviant, criminal, worrying or troublesome in some way by the others.”

Finally, the element of justice would also require that there is a reasonable time limit for detention within which the government is able to reasonably achieve its objective and the individual in detention does not face uncertain period of detention. It has been argued recently by The Detention Forum that the period of 28 days as upper limit for detention is reasonable period because individuals are detained without charge, and the period of 28 days can be considered to be acceptable upper limit as the government will have sufficient time to achieve its aims and there would be some limits on the powers of the government to deprive individuals of their liberty. This argument is aligned with the view taken by the Home Affairs Select Committee, which urged the Government to bring an end to indefinite immigration detention and implement a 28-day time limit. It would also be useful to note that there has also been some political discourse on this issue and David Davis MP (Conservative, Haltemprice and Howden) also tabled amendments to the Immigration Bill which received cross party support in the House of Commons; the amendments related to reduction of time limits to 28 days or less. Furthermore, amendments have sought that independent judges be in charge so as to have some oversight in detention cases. These developments also suggest that there is now a wider support of having time limit requirements even if the ECtHR has found that indefinite detention is not in contradiction with the ECHR, Article 5.

1. Ibid, p. 61.
2. Ala Siriyeh, ‘Sanctuary or sanctions: Children, social worth and social control in the UK asylum process’, in Malcolm Harrison and Teela Sanders, Social Policies and Social Control: New Perspectives on the 'Not-So-Big Society' (Clifton: Policy Press 2014) p.81.
3. M Innes, Understanding social control: Deviance, crime and social order (Maidenhead: Open University Press 2003) p.3.
4. The Detention Forum, Time Limit for Immigration Detention (Briefing Paper 2020).
5. Ibid

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To conclude, even though the ECtHR may have found in favour of the indefinite detention law in Immigration Act 2016 and its rules, this does not mean that the law can be seen to be fair and just in itself. The application of the law to all migrants including forced migrants, and the imposition of detention without having the certainty of time limits attached to such detention make it a process that is not fair in itself. The detainees are subjected to prison like conditions without having the same certainty of sentence that prisoners do. Furthermore, there is no judicial oversight to assess the process of the administrative authorities. Keeping this in mind, it can be argued with justification that the lack of time limits in immigration detention is not fair and just. There have been recommendations to make the time limit certain to 28 days or less, which also suggest that there is an understanding in some quarters that the provision needs reconsideration.

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Legislation

Aliens Act 1905

Immigration Act 2016

Cases

Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931.

J.N. v. United Kingdom, Application No. 37289/12, 19 May 2016.

Lumba v. Secretary of State for the Home Department (2011) UKSC 12.

R v Governor of Durham Prison ex p. Hardial Singh [1984] 1 WLR 704.

Books

Bosworth M, Inside Immigration Detention (Oxford: Oxford University Press 2014).

Innes M, Understanding social control: Deviance, crime and social order (Maidenhead: Open University Press 2003).

Siriyeh A, ‘Sanctuary or sanctions: Children, social worth and social control in the UK asylum process’, in Malcolm Harrison and Teela Sanders, Social Policies and Social Control: New Perspectives on the 'Not-So-Big Society' (Clifton: Policy Press 2014).

Journals

Crawford J, Sharon Leahy, Kim McKee, ‘The Immigration Act and the ‘Right to Rent’: exploring governing tensions within and beyond the state’ (2016) 10 (2) People, Place and Policy 114.

Griffiths M, ‘Living with uncertainty: Indefinite immigration detention’ (2013) 1(3) Journal of Legal Anthropology 263.

Silverman SJ, “Regrettable but necessary?” A historical and theoretical study of the rise of the UK immigration detention estate and its opposition’ (2012) 40(6) Politics & Policy 1131.

Turnbull S, ‘Stuck in the middle’: Waiting and uncertainty in immigration detention’ (2016) 25 (1) Time & Society 61.

Reports

Council of Europe’s Commissioner for Human Rights, Memorandum on the human rights of asylum seekers and immigrants in the United Kingdom (EU 2016).

Detention Forum, Time Limit for Immigration Detention (Briefing Paper 2020).

Joint Committee on Human Rights, Immigration detention Sixteenth Report of Session 2017–19 (HC 1484, Parliamentary Copyright House of Commons 2019).