It is a fundamental principle of our unwritten constitution as well as international human rights law that detention at the behest of the executive is an exception, to be closely policed by the courts. Indeed in the Belmarsh case (A & Ors) Baroness Hale held that ‘It is not for the executive to decide who should be locked up for any length of time, let alone indefinitely… Executive detention is the antithesis of the right to liberty and security of the person’. Yet executive detention against immigrants is increasing exponentially in the UK – almost 25,000 entered detention under the Immigration Acts in the year ending 2014 – and is not subject to a maximum time limit or to automatic judicial oversight.
Members of Doughty Street chambers have been closely involved in the vitally important legal struggle to ensure that close limits are imposed on the Home Secretary’s ostensibly wide powers to detain immigrants. We have acted in cases which developed common law limitations on the power to detain (I v SSHD); ensured that the Home Secretary was held accountable for operating a secret blanket policy of detention against foreign national offenders (R (Lumba and Mighty) v Secretary of State for the Home Department) and for failing to comply with procedural safeguards in her published policy (R (Kambadzi) v Secretary of State for the Home Department); and which ended the practice of detaining asylum seekers to process their claims in the ‘Detained Fast Track’ (Detention Action v FTT (IAC)).
Members of chambers have also acted to try to ensure that policies which purport to safeguard the particularly vulnerable from being detained are interpreted in a way which offers effective protection for those suffering from mental or physical illness and victims of trafficking, as well as for families with children.
The key question now is whether the UK’s statutory regime for the detention of immigrants complies with EU law or the European Convention on Human Rights (ECHR) in light of the lack of those procedural safeguards increasingly recognised as essential bulwarks against arbitrary detention – time limits and automatic judicial oversight. This is a system in which immigrants (and their lawyers, if so fortunate) cannot reliably foresee the duration of their detention and, if they access a court at all, may do so only after the end of their detention. Members of Chambers will soon argue in the Supreme Court (Nouazli v SSHD) and in a series of cases communicated by the European Court of Human Rights that this meets neither the requirements of the EU general principle of legality nor the requirements of quality of law (foreseeability, precision and accessibility) for the purposes of justifying detention under Article 5(1) ECHR.
For more information about Doughty Street’s work in this area please see our immigration detention team page.