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Blocking detainees’ access to legal advice websites probably breaches Article 10 ECHR


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Free Movement has reported twice on immigration removal centres (IRCs) blocking access to websites informing detainees of their legal rights. HM Chief Inspector of Prisons criticised Haslar IRC two years ago for having the websites of Bail for Immigration Detainees and Amnesty International blocked.

The All Party Parliamentary Group on Refugees’ 2015 report on their inquiry into use of immigration detention slammed the detention centres for blocking access not only to the above websites, but also to the inquiry’s own website.

We were told that, in practice, detainees are often blocked from accessing sites that appear to have no security risk. These include the websites of Amnesty International, the BBC, IRC visitors groups, foreign language newspapers and other NGOs. The panel were particularly alarmed by reports that areas of the inquiry’s own website were not accessible in some IRCs. It is difficult to see what security risk a cross-party parliamentary inquiry could pose.

Article 10 ECHR guarantees the qualified right to freedom of expression. It states (my emphasis):

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.

On 6 June 2016 the European Court of Human Rights’ Second Section gave the finalised version of its judgment in Kalda v Estonia, to little more than a ripple of academic comment. But it may represent the kernel from which a legal solution to the issue outlined above could be found.

Mr Kalda was imprisoned for murder. He had requested access to the online version of the State Gazette, the decisions of the Supreme Court and administrative courts, available online, and the European Court of Human Rights’ HUDOC database. When this was refused, he argued before national courts and then the European Court of Human Rights that this breached his Article 10 rights to receive information without interference by public authority.

The Court decided 6-1 that there was a breach. The Court was, admittedly, less than emphatic, finding that in the circumstances of the case, since access to some legal websites was granted under Estonian law, the decision to restrict access to other websites had to constitute an interference with his Art 10 rights. It specifically stated that its decision would not be able to found a general right to the internet or to specific websites. The interference was adjudged to not be justified as necessary to a democratic society. Therefore the Court found a violation of Art 10.

Its main reasoning on the necessity point is worth a read, as the excuse the Estonian Supreme Court made sounds like one that a detention centre might try to concoct:

The Supreme Court limited its analysis on this point to a rather general statement that granting access to additional Internet sites could increase the risk of detainees engaging in prohibited communication, thus giving rise to the need for increased levels of monitoring. The Court also considers that the Supreme Court and the Government have failed to convincingly demonstrate that giving the applicant access to three additional websites would have caused any noteworthy additional costs. In these circumstances, the Court is not persuaded that sufficient reasons have been put forward in the present case to justify the interference with the applicant’s right to receive information.

Despite the tepid approach of the Court, the situation in England appears to be directly analogous. Like in Estonian law, UK law allows detainees access to some websites and blocks others. I am sure detention centres never blocked access, for instance, to the .gov.uk website including its legislation section – and including the section giving clear information on voluntary return – a stark contrast to the labyrinthine points based system.

The blocking of legal websites such as BID without authorisation by primary or secondary legislation would for these purposes constitute an unpublished decision by the detention centre. It should therefore be capable of challenge through the Human Rights Act as being contrary to the detainees’ Art 10 rights. A successful case would set a positive precedent. Furthermore, being condemned as a violator of fundamental rights would represent a clear PR loss to a private company otherwise incentivised to keep detainees locked up for as long as possible.

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Paul Erdunast

Paul Erdunast is a barrister at Temple Garden Chambers in London (https://tgchambers.com/member-profile/paul-erdunast/). Prior to this he was Legal and Parliamentary Officer at ILPA, where he delivered immigration law training and spoke at conferences. In previous jobs he lectured on asylum law and provided EU migrants with immigration advice.