Immigration detention is the detention of migrants who are seeking entry to a territory, or awaiting deportation, removal, or return from a territory.1 It might affect, inter alia, asylum-seekers; for this reason, EU law and international law have developed standards of protection for the human rights involved, with a special focus on applicants for international protection.
In the UK, immigration detention concerns, in the majority of cases, persons who have sought asylum at some stage during their immigration processes.2 The present post explores how the UK legal system deals with their detention and concludes that the current UK regime infringes the standards of protection set out by EU law and international law on many grounds, and it is in urgent need of reformation.
The main instruments of EU law regulating the detention of third-country nationals (TCN) applying for international protection are the Reception Conditions Directives3 and the recast Reception Conditions Directives.4 The recast Directives provide detailed rules, allowing for the detention of asylum-seekers only in a limited number of case,5 and only when other, less coercive measures cannot be effectively applied instead.6 They impose specific procedural guarantees on the decision to detain,7 and they require detention to be applied ‘only for as short a period as possible’.8 The UK has not opted in: thus, it is only bound by the less detailed regime provided by the Reception Directives.
Under the Reception Directives, TCNs applying for international protection cannot be considered as ‘illegally staying’ in the EU.9 Limitation to their freedom of movement is allowed only in exceptional circumstances.10 Member States have the duty to provide them with living conditions that are ‘adequate for the health of applicants and capable of ensuring their subsistence’.11 They must also ensure that applicants receive the necessary health care,12 and that persons who have been subjected to torture, rape or other serious acts of violence are granted the necessary treatment.13
It is to be noted that, in implementing EU directives, member states should be guided by the relevant principles enshrined in the Charter of Fundamental Rights.14 The Charter acknowledges the right to asylum:15 however, the European Court of Justice has not pronounced itself, yet, on the implications of this right.
The most important international instrument regulating asylum is the UN Convention relating to the Status of Refugee (RC).16 The Convention precludes the imposition of penalties against refugees coming directly from a territory where their life or freedom was threatened, on the mere account of their illegal entry or presence in the State Party.17 More generally, international law is inspired by the principle that ‘seeking asylum is not an unlawful act’.18 Accordingly, the restriction of asylum-seekers’ right to liberty cannot be arbitrary, and must have a ‘legitimate purpose’ (namely: protection of public order, public health, and national security).19 The decision to detain must be taken on a case-by-case basis, with an assessment of whether it is necessary, reasonable in all the circumstances and proportionate to the purpose.20 Furthermore, national laws must establish a temporal limit for detention.21
In terms of regional Human Rights law applicable to the UK, it is noteworthy that the right to asylum is not enshrined in the European Convention on Human Rights and Fundamental Freedoms (ECHR)22or its Protocols, and no specific provision regulates the detention of asylum seekers.23 However, even if States Parties have the ‘right to control the entry, residence and expulsion of aliens’,24 they must still exercise this right in compliance with their human rights obligations.25 This includes Article 3 ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.26 When assessing which conditions of detention amount to ill-treatment, the European Court of Human Rights (ECtHR) generally applies greater protection to ‘extremely vulnerable’ persons (such as asylum-seekers).27 Thus, applicants for international protection benefit from additional guarantees under the ECHR system.
In the UK, the detention of an asylum-seeker can be either criminal or administrative in nature. Under Section 24 of the Immigration Act 1971, any foreigner who ‘knowingly enters the United Kingdom in breach of a deportation order or without leave’ has committed a criminal offence. The Immigration Act also gives immigration authorities the discretional power to decide whether to detain migrants pending an examination of their qualification for entry or their removal or departure from the UK.28
The wide discretionary powers conferred upon UK administrative authorities on immigration detention are partly limited by the ‘Hardial Singh’ common law principles.29 However, there are still other issues, such as the absence of a fixed limit on the time that a person (even an asylum-seeker) may be held in immigration detention.30 In the absence of such a limit, the High Court has found that detention for a significant number of years was not unlawful.31 Moreover, there is no automatic or independent review of the appropriateness, lawfulness, or length of detention,32 and migrants subjected to administrative detention are not automatically brought to court with the opportunity to apply for bail.33
After the 1990s, successive Governments have applied a restrictive immigration regime.34 In the 2000s, the Labour Government expressly declared its intention to ‘introduce a new asylum process, detaining more people’,35 and launched the use of a ‘detained fast-track’ for asylum procedures, targeting ‘failed’ asylum seekers.36 The fast track procedure has now been extended to all claimants for asylum whenever ‘it appears that a quick decision is possible’.37 Obviously, this has radically increased the number of detention cases. 38 Indeed, since this extension, the UK has detained more asylum seekers and for longer periods than any other European State, except Greece.39
UK law and EU/international standards
Although the UK is the European country with the highest number of claimants for asylum protection, its legal system does not comply with many obligations under EU law and international law.
The first issue is the qualification of illegal entry as a criminal offence: all migrants, including applicants for international protection, can be held criminally responsible simply for entering the UK without leave. This provision clearly violates the UN Refugee Convention, which prohibits the imposition of penalties against asylum-seekers on the mere account of their illegal entry or presence in a State Party.40 It also runs counter to EU law, under which applicants for international protection cannot be considered as illegally staying in the territory of the EU, until the end of the procedure examining their application.41
The second issue is the indiscriminate detention of all illegal migrants under the immigration authorities’ wide discretionary powers. The ECtHR has held that the UK policy of assimilating the detention of asylum-seekers to the detention of all other migrants does not, per se, constitute a violation of their right to liberty and security.42 Furthermore, since the UK has not opted in to the recast Reception Directives, it is not bound by the EU provisions requiring Member States to use immigration detention only as a measure of ‘last resort’.43 However, the indiscriminate detention of asylum-seekers under the ‘fast-track’ procedure runs counter to the EU provisions requiring Member States to provide asylum-seekers with adequate living conditions.44 It also violates international law, under which the decision to detain should always be made on a case-by-case basis, with an assessment of whether it is necessary, reasonable in all the circumstances and proportionate to the purpose.45 In fact, the Council of Europe Commissioner for Human Rights has condemned the UK practice of approving detention for the sole purpose of processing asylum applications.46
A third issue relates to the conditions of detention, which are suspected of being degrading and inappropriate.47 International and domestic NGOs have reported that, at the time of being detained, migrants were not told whether there was judicial scrutiny of their detention48 and were not given adequate access to legal representation or funding.49 Additionally, the use of gender-mixed accommodation puts women at risk of sexual violence, and creates distinct problems for children. 50
A fourth issue is that in the UK there is no fixed limit to the time a person may be held in immigration detention. The United Nations Committee Against Torture has urged the UK to ‘introduce a limit for immigration detention and take all necessary steps to prevent cases of de facto indefinite detention’.51 However, no limit has been introduced, either in statute or in case law.
The current UK regime on the detention of asylum-seekers is very poor. Despite clear European and international standards, there is an absence of minimum procedural and substantive safeguards for asylum-seekers. In addition, the State’s unwillingness to opt in to the recast Reception Directives allows situations which, in most EU member states, would be regarded as violations of EU law.
This year, a cross party-group of MPs has ‘called for an end to the indefinite detention of migrants, warning that too many people are being unnecessarily detained, under a system they deemed to be “expensive, ineffective and unjust”’.52 One cannot but share this opinion and hope that future UK governments will work concretely to guarantee better compliance with EU and international obligations. At the same time, the UK should opt in the recast Reception Directives, and bring its regime in line with current EU standards.
1 Cathryn Costello ‘Human Rights & the Elusive Universal Subject: Immigration Detention under International Human Rights and EU Law ‘ (2012) Indiana Journal of Global Legal Studies 257 at 258 n 1
2 See the data collected by the Migration Observatory of Oxford University: Stephanie J Silverman, Hajela Ruchi, Immigration Detention in the UK. Migration Observatory briefing (COMPAS 2015)
3 Council Directive 2003/9/EC of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers in Member States, Reception Conditions Directive (RCD); Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and withdrawing Refugee Status, Reception Procedure Directive (RPD)
4 Directive of the European Parliament and of the Council 2013/33/EU of 26 June 2013, Laying Down Standards for the Reception of Applicants for international protection (recast) Reception Conditions Directive (RCD recast); Directive of the European Parliament and of the Council 2013/32/EU of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection (recast) Reception Procedure Directive (RPD Recast)
5 RCD Recast, Art 8
7 RCD recast, Art 9 (2)
8 RCD recast,, Art 9 (1)
9 Case C‐534/11 Arslan  ECR I-0000 at 48
10 RCD, Art 7
11 RCD, Art 13
12 RCD, Art 15
13 RCD, Art 20
14 Consolidated Version of the Treaty on European Union  OJ C115/13 (TEU) Article 6(1)(3). It is worth noticing that the adoption by the UK of Protocol 30 to the Charter has created some controversy over the extent of the Charter’s practical application to the UK. See, e.g. : Catherine Barnard, The ‘Opt-Out’ for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?, in Stefan Griller and Jacques Ziller (Eds), The Lisbon Treaty (Vienna 2008); Jean-Paul Jacqué, The EU after Lisbon (Vienna, 2014) at 153
15 Charter of Fundamental Rights of the European Union  OCJ 364/01 (EUCFR) Art 18
16 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention)
17 Refugee Convention , Art 31 (1)
18 UN High Commissioner for Refugees (UNHCR), Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012) (GD) replacing the Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers (1999), Introduction, par 2; Celepi v Sweden, Communication 456/1991, CCPR/C/51/D/456/1991
19 GD, Guideline 4.1
20 GD, Guideline 4.2; Refugee Convention, Art 31(2); ICCPR, Art 13; A v Australia, Communication 560/1993, CCPR/C/59/D/560/1993; C v Australia, Communication 900/1999, CCPR/C/76/D/900/1999)
21 GD, Guideline 6 and Annex A
22 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR)
23 Vilvarajah and Others v UK  ECHR 47, 102; Chahal v UK  ECHR 54, 73
24 Riad and Idiab v Belgium, App 29787/03 and 29810/03 (ECtHR, 24 January 2008) 107
25 Riad and Idiab, 94
26 ECHR, Art 3
27 See e.g.: Mubilanzila Mayeka and Kaniki Mitunga v Belgium  ECHR 2006-XI, 55; Riad and Idiab, 98
28 Immigration Act 1971 S 2
29 These principles were established in: Singh, R (on the application of) v Governor of Durham Prison  EWHC 1 (QB), 7. In this case, the High Court assessed that, even if ‘the power which is given to the Secretary of State (..) to detain individuals is not subject to any express limitation of time’, it has limits. Particularly, it is ‘impliedly limited to a period which is reasonably necessary’ for complying with the purpose of detention, i.e. to verify the migrant’s identity or carry out removal or expulsion. The appropriate period of detention ‘must be calculated according to the circumstances of the particular case’ and, if there are reasons to believe that the reasonable period will not be respected, the power of detention should not be exercised.
30 Bail for Immigration Detainees (BID), Submission to the United Nations Working Group on Arbitrary Detention Immigration Detention in the United Kingdom (2002)
31 See, for instance: R (on the application of Muqtaar) v. Secretary of State for the Home Department  1 WLR 649
32 Michael Welch and Liza Schuster, ‘Detention of asylum seekers in the US, UK, France, Germany, and Italy: A critical view of the globalizing culture of control’ Criminal Justice 5(4) (2005) 331, 337
33 Anna Jackson, ‘The Detention of Asylum Seekers in the UK: Bail for Immigration Detainees’, Feminist Review 73 (2003) 118, 199
34 Mary Bosworth and Mhairi Guild, ‘Governing Through Migration Control. Security and Citizenship in Britain’ BRIT J CRIMINOL 48 (2008) 703, 703 – 706
35 Home Office, Controlling our Borders: Making Migration Work for Britain (White Paper, Cm 4018, 2005) 8
36 Home Office, Secure borders, safe haven: Integration with diversity in modern Europe (White Paper, Cm 5387, 2002a) par 4
37 UK Visas and Immigration, Detained Fast Track Processes, 1 June 2013 : <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/370322/Detained_Fast_Track_Processes_v6_0.pdf> retrieved 3 April 2015
38 Daniel Trilling, ‘Why does Britain detain so Many Asylum-Seekers?’ New Statesman (6-12 December 2013) 13
39 Detention Action, The State of Detention. Immigration Detention in the UK in 2014 (London, 2014) 3
40 Refugee Convention , Art 31 (1)
41 Arslan, at 48
42 Saadi v UK, App no 13229/03 (EctHR, 29 January 2008) par 65
43 Return Directive, Art 15 (1)
44 Text to n 11
45 Refugee Convention , Art 31 (1); GD, Guideline 4.2; A v Australia, Communication 560/1993, CCPR/C/59/D/560/1993; C v Australia, Communication 900/1999, CCPR/C/76/D/900/1999)
46 Council of Europe Commissioner for Human Rights, Report on his visit to theUnited Kingdom (CommDH(2005)6)
47 Chris Green, ‘Harmondsworth: Detained asylum-seeker sews up mouth in protest at conditions’ , The Indipendent (24 March 2015 ) available online at <http://www.independent.co.uk/news/uk/home-news/harmondsworth-detained-asylumseeker-sews-up-mouth-in-protest-at-conditions-10131200.html>
48 Amnesty International, Seeking Asylum Is Not a Crime: Detention of People Who Have Sought Asylum (London, 2005) 13
49 Bail for Immigration Detainees (BID), Briefing: Immigration Detention in the UK: Key Facts and Figures (2007), <www.biduk.org/immigration/facts.htm>; Bail for Immigration Detainees, Immigration Detainees’ Experiences of Getting Legal Advice Across the UK Detention estate: summary results for surveys 1 – 8, (2014) <http://bit.ly/LjWGrw>
50 Amnesty International, Most vulnerable of all: The treatment of unaccompanied refugee children in the UK (London, 1999). See also: HM Inspector of Prisons, Report on unannounced inspection of Yarlswood Immigration Removal Centre 17-28 June and 30 Sept – 1 Oct 2013 (2013) <http://www.justice.gov.uk/downloads/publications/inspectorate-reports/hm… →
51 Committee against Torture, Fifth periodic report of the United Kingdom (6-31 May 2013)
52 Amelia Gentleman, ‘MPs call for end to indefinite detention of migrants’, The Guardian (3 March 2015), available online at: <http://www.theguardian.com/uk-news/2015/mar/03/mps-call-end-indefinite-detention-migrants>