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Sea change needed on detention


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A sea change is needed on the detention of foreign nationals in the United Kingdom. Periods of detention have grown and grown in recent years. The Home Office never ask ‘should we detain this person’, they merely ask ‘can we detain this person.’

In a civilised country, the ultimate sanction for breaking the law is deprivation of liberty. It is a serious sanction. It should not be used lightly. The effect of detaining a person – the end of their life as they know it, a total curtailment of their social, private and family life and feelings of humiliation, shame and isolation– should never be underestimated.

Arguably, detention is already overused for home-grown criminals, as Nick Clegg, seemingly Galactic Leader-elect, suggests. It is massively overused for foreign national criminals. Judges are unwilling to grant bail even after periods of detention that would constitute serious criminal sentences. The reason given is that there is a possibility of re-offending, and/or a risk of absconding. Most judges are now inured to lengthy detention, it is has become so commonplace in the last handful of years.

There is always a risk, but even very small risks seem to be enough to justify incredibly long periods of detention. Judges seem overly aware of the possibility of media interest from the likes of The Sun and The Daily Mail. The Court of Appeal, in a very damaging decision, held that risk of re-offending is a lawful consideration, but on incredibly unsympathetic facts in that particular case (R (on the application of A) v SSHD [2007] EWCA Civ 804). The facts of that case can be shown to be highly unusual, but judges continue to cite and rely on it.

In the recent Iraqi detention case of Ibrahim & Anor v Secretary of State for the Home Department [2010] EWHC 764 (Admin) it is interesting to note that the interesting and novel arguments deployed by the lawyers were not those that won the day for the client. The judge held that since removals were not taking place to Iraq at the time of detention, detention was effectively indefinite and was therefore unlawful. The same arguments apply to many countries, including at different times Zimbabwe, Eritrea, Cuba and Sri Lanka off the top of my head.

The case doesn’t represent the kind of sea change that is needed, but it is encouraging. We have to see what the Supreme Court will make of the various detention cases wending their way there.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


2 Responses

  1. SK(Zimbabwe) is surely due to be handed down soon. That will be interesting as I cannot imagine the Supreme Court will take the same line as the court of appeal; that a flagrant disregard by government officials for the rules and provisions circumscribing the SSHD’s right to detain has no bearing on on the legality of detention itself.

    Complete deference to the executive on this matter is a display of cowardice on the part of the courts, who are supposed to be defenders of the rule of law.

  2. A was a particularly nasty case – a shame, in a way, that it was these facts before the Court of Appeal. It’s hard to feel sympathy (judicial or otherwise) for a man who has raped a 13 year old, including anally, and threatened her with a gun. He also boasted about fights he’d had, denied guilt, and was assessed as a high-risk for sexual reoffending. A nastier set of facts is hard to imagine.