Indefinite Immigration Detention in the UK: The Double-Edged Sword of Democracy

LONDON SCHOOL OF ECONOMICS

DEPARTMENT OF PHILOSOPHY, LOGIC, AND SCIENTIFIC METHOD

Indefinite Immigration Detention in the United Kingdom:

The Double-Edged Sword of Democracy

by Raha Tabar

Word count: 9,985 (excluding bibliography)

M.SC. PHILOSOPHY AND PUBLIC POLICY

2010/2011

1

Introduction

Immigration policies which restrict the flow of asylum seekers, like terrorism laws, are

widely viewed as necessary safeguards to national security, ‘the new common sense of our

age’1. Yet these policies are implemented by modern democratic states, which are

longstanding proponents of equality and freedom. In light of this, modern democracy may

come across as a double-edged sword.

Those seeking asylum in the modern democracy of the United Kingdom may find themselves

held indefinitely, without trial. Though it is difficult to obtain robust statistics, the London

Detainee Support Group (LDSG) estimates that 28,000 immigrants are in detention per year2.

The length of detention varies for each immigrant, and there is no statutory limitation.

Detention is defended by the state as a necessary mechanism to accommodate the

administrative process for migrants.

This essay will address the following questions: When is the detention of asylum seekers

used? What are the objectives of the policy? What legislation is relevant? Who will be the

judge? And what moral issues does it raise?

Section one sets the scene, as it is crucial to acknowledge the historical and political

undercurrents that have shaped current immigration policy. Section two critically examines

the emergence of indefinite immigration detention in the UK. Section three systematically

outlines the legislation that permits indefinite immigration detention. Section four clarifies

the rights of immigrants in detention. Section five, six, and seven evaluate the necessity of

detention, other types of state-ordered detention, and its human and financial cost. The

final sections propose ideas for reform, followed by concluding remarks.

The motif of this essay is analogous to Jurgen Habermas’ claim that contemporary

democracies have relinquished principles of egalitarianism. Draconian immigration policies,

such as indefinite immigration detention, have sown inequality. It follows, that in order to

render immigration policy democratic, citizens and migrants should be treated as equals by

virtue of being human.

It will be argued that indefinite immigration detention is a policy failure, because it violates

human rights, treats non-nationals unfavourably, and is also ineffective for its own purposes.

Further, where immigration detention is used for implicitly deterring asylum seekers, it is

unlawful, and where it is used for administrative convenience, it is not proportionate to its

human and financial cost.

In response to the evidence, it will be proposed that the state should eradicate indefinite

immigration detention, with a view to setting a formal time-limit on detention for asylum

1 Gearty. 2005. (p. 102)

2 The figure is based on estimates given at LDSG’s conference Human Rights Denied held in November

2010.

2

seekers. The proposed time-limit is 29 days. This recommendation is made on the basis of

statistical data analysis, which indicates the length of detention that is necessary for the

practical purposes of this policy.

While there is inevitably some overlap, this essay will focus primarily on immigration policy

in the United Kingdom, as opposed to the laws in other European countries and those of

America. The United Kingdom is one of a very few states which permits indefinite periods of

immigration detention. However, the general culture of resisting migration is one that has

been felt by the majority of states.

1. Setting the Scene: Western Democracy and Migration

Migration has increased over the past century for many reasons. To name a few: wars,

persecution, illegitimate governments, religious or tribal conflicts, climate change, economic

pull factors, and poverty. This has been a challenge for democracy. Most notably, the two

topics of ‘national security’ and ‘human rights’ coincided as they emerged in public discourse

at the same period in history. The Second World War raised concerns for human rights,

which led to the Universal Declaration of Human Rights (UDHR) 19483. But concerns for

national security also prompted states to violate these same human rights in the face of

emergencies. In light of this paradox, Connor Gearty posed the question: ‘Can human rights

survive in the field of national security?’ We live in a world where ‘danger and fear are fast

replacing dignity and hope’4. Would it be unrealistic to think otherwise?

The global patterns at large portray a bleak picture. Habermas argues in The Structural

Transformation of the Public Sphere that contemporary democracies are paradoxical in their

formation, since they undermine classical liberal theories. According to his line of argument,

modern democracies are transforming into a nouveau form of authoritarianism, whereby

the authorities in public and private organisations fuse to maintain and amplify political

domination. This has had an impact on immigration policy. The rise in the numbers of

asylum seekers provoked states to implement austere policies to deter asylum seekers.

Linda Briskman states that, ‘the various attempts at deterrence by Western countries in

particular reveal capricious and cruel policies that not only flout international conventions,

but defy commonly accepted standards of tolerance, humanity, and decency’5.

In the UK, indefinite immigration detention emerged as a safeguard to national security, but

it is also perceived as a blanket-policy to deter asylum seekers. The Thematic Briefing

prepared for the Independent Asylum Commission Information Centre about Asylum and

Refugees (ICAR) in 2007 cites White Papers published by the Home Office such as Fairer,

Faster, Firmer from July 1998 which conveyed anti-immigration sentiments through ‘a clear

attempt to increase the use of detention, particularly with the introduction of a fast-track

process considered by NGOs as a mechanism put in place to deter future asylum

3 An international treatise that has contributed immensely to the global practice of human rights law.

4 Gearty. 2005. (p. 102)

5 Alperhan and Briskman. 2008. (p. 1)

3

applications’6. Secure Borders, Safe Haven, published four years later, presents the view that

detention is an ‘essential element to the effective enforcement of immigration control’.7

The impetus to deter asylum seekers is strongly driven by economic factors, following

heightened nationalism and globalization after the Cold-War in 1970. The detention centres

in the UK represent a cynical view of Western thinking, which suggests that globalization

should boost the economy but not its individuals. According to this logic: ‘everything –

goods, capital, information - must flow freely, cross national borders unhindered. Everything

that is, except people. For the system to function properly, people must not circulate freely

because they embody a commodity - labour- which must be kept in place’8. Reportedly, the

capitalist organizations in the West purchase cheap labour from countries such as Indonesia,

Bangladesh, Guatemala, and the Democratic Republic of Congo, and they would suffer

economically if these individuals were free to migrate into the market of the West, where

they can expect to be paid more9.

The mass media, in its pursuit of economic profit, has stoked what Derek McGhee refers to

as ‘asylum hysteria’10

. McGhee notes that ‘sections of the media collude with governments

to paint a fear-producing depiction of asylum seekers’11

. The thought that immigration is

inherently destructive to society often swarms the minds of Western citizens. The veil that

has draped the language of immigration policy has generated the view that migration invites

foreign ex-offenders, raises inflation, and damages cultural sovereignty. Linda Briskman

refers to frequent descriptions of migrants as ‘queue-jumpers’, ‘bogus claimants’ and

‘illegals’12

. The problem is best characterised by George Bernard Shaw’s observation that

human beings enjoy categorising people into ‘good sets’ and ‘bad sets’, ignoring the reality

that individuals are vastly complex, and should not so readily be labelled.

Even though the above terms have created a public that have been driven into xenophobia,

tough policies of deterrence sometimes result in tragedies, which result in public outrage.

The LDSG reports one man to have died, the day after being released from a 23-month

immigration detention.13

The thought that all will be solved by deterring the ‘bad guy’ or the

‘stranger’ is detrimental to global unity, and undermines the principle of equality. Notably,

Joseph Caren makes a case for open borders because he recognises our human rights,

including our right to migrate, as morally superior to the prioritisation of citizenship.

On these grounds, this essay promotes the view that governments should have more faith in

immigrants. This essay does not present a case for open borders, as that is a separate

debate. But rather, it highlights the defects in immigration policy, which unnecessarily

permit a culture of rights violations.

6 ICAR Briefing. 2007. (p. 3)

7 Ibid.

8 Tunstall. 2006. (p. 3)

9 Ibid.

10 Alperhan and Briskman. 2008. (p. 1)

11 Ibid.

12 Ibid. (p. 2)

13 Phelps. 2010. (p. 9)

4

It is largely a fallacy to view immigration detention as a necessary part of democratic

decision making. It is merely brought about in an ‘exaggerated anxiety that offers carte

blanche to the security perspective’14

. But despite the conflict between wanting to preserve

both national security and human rights, Gearty also notes, a ‘lack of conflict’, which stems

from a ‘redefinition of human rights’. The redefinition appears to be on teleological grounds,

where a strongly utilitarian perspective might permit ‘messing about aggressively with

people, suspending ordinary processes of law, narrowing the civic space so as to exclude

alternative points of view’15

for the sake of society.

2. Indefinite Immigration Detention in the UK: The Beginnings

The following episode provoked a reaction to government policy. On 25th

April 2006, an

outbreak of scandals emerged. Five asylum seekers released from detention absconded16

.

Hundreds of similar occurrences quickly surfaced. The United Kingdom Border Agency

(UKBA) had repeatedly failed to assess the cases of immigrants for possible deportation.

Opposition MPs called for the then Home Secretary, Charles Clarke to resign. David Davis

described the situation as a ‘massive failure’. The media brought this to the forefront of

national news as an enormous crisis.

Subsequently, indefinite immigration detention emerged as a means of controlling the influx

of asylum seekers. The implication of this policy is that for any length of time, an individual

may be detained, in so far as he or she is suspected of being a threat to society, or having

entered the UK on illegal grounds with false documentation. Even in the absence of official

proof of an offence, it is possible for asylum seekers to be indefinitely detained. During this

period, the Home Office is required to assess the legitimacy and circumstance of each

asylum application to the UK.

Immigration detention can be ordered upon an individual at any stage during their asylum

application process17

, and it is reserved for those whose claims are pending a decision. It can

also be ordered upon non-nationals who have not left the UK despite the expiry of their

visas, foreign ex-offenders who are to be deported, and rejected asylum seekers who are to

be removed.

However, the criteria for those who are eligible for detention are unspecific. The guidelines

used by the Home Office to judge whether an individual should be detained stipulates the

assessment of previous history to determine whether there has been: previous absconding,

non-compliance with immigration law, illegal entry or use of false documentation. They also

require estimation of the likelihood of removal, expected length of detention, potential

14

Gearty. 2005 (p. 108) 15

Ibid. 16

The details of the offences are listed here: http://news.bbc.co.uk/1/hi/uk_politics/4957004.stm 17

ICAR Briefing. 2007. (p. 3)

5

outcome of the claim, the existence of incentives for the person to remain in contact with

the authorities, family ties to those in the UK, and grounds for compassion.18

If an asylum seeker continually insists on the validity of his or her false documentation, then

the case is more likely to lead to detention. The breadth of documentation carried by the

asylum seeker is taken into account, alongside which, ‘the national origin of the individual is

likely to contribute towards this early decision to detain’19

.

The turbulence of this policy caused several British nationals to be detained, merely because

they were born abroad. One of these cases resulted in the Home Office having to give

£100,000 compensation to a Mr J, who was detained for 18 months. Mr J, originally from

Somalia, did not have adequate documents to prove that he was raised in the United

Kingdom, and that his father is a British citizen. Despite having insisted on his British

citizenship, he was informed that he would have to face deportation to Somalia. After

getting in touch with Pierce Glynn Solicitors, via the LDSG, the Home Office were threatened

with court action, and Mr J was released. The Home Office later acknowledged their errors20

.

3. The Legality of Indefinite Immigration Detention

According to international law, indefinite detention of immigrants is permissible if and only if

it is for a ‘reasonable period’.21

The detention is lawful in so far as there is no prospect of the

applicant being removed in the very near future and the applicant is not physically or

mentally impaired. The conundrum lies in the fact that there are various international laws

which also directly prohibit immigration detention. But the conditions for either case tend to

be textually ambiguous.

The International Status of Immigrants is defined in the following Treatise:

� The Universal Declaration of Human Rights 1948 (UDHR)

Article 14 of the UDHR recognizes the right of persons to seek asylum from persecution

in other countries. The United Nations Convention relating to the Status of Refugees

(The Refugee Convention hereinafter) deploys this principle as the hallmark of

international refugee protection.

� The Refugee Convention 1951

The Refugee Convention was drafted in the aftermath of the Second World War, during

which refugee status was often unachievable.

� Conclusions drawn from Executive Committee meetings at the UNHCR

The United Nations High Commissioner for Refugees 1950 (UNHCR hereinafter) was

ratified by the United Nations General Assembly. The agency formulates international

action to protect refugees across the globe and Article 35 stipulates that all states must

adhere to this duty.

18

Hughes and Liebaut. 1998. (p. 22) 19

Ibid. (p. 18) 20

The case is listed here: http://www.pierceglynn.co.uk/news_1.htm 21

Johnston. 2009 (p. 354) – quoting Lord Justice Woolf.

6

� The European Convention of Human Rights 1951 (ECHR)

An international treaty to protect the human rights of all persons in Europe, ratified by

the Council of Europe, which has also been incorporated in UK domestic law, through

the Human Rights Act 1998.

The Refugee Convention defines a refugee as ‘an individual with well-founded fear of

persecution on the grounds of nationality, race, political opinion, religion, or membership of

a political social group’. In contemporary society, this definition requires further expansion,

so to include, for example, sexual orientation. But if it is to be altered, it risks withdrawal

from nations that already find it too liberal. Tunstall notes that the Conservative party in the

UK has always been traditionally hostile towards the Convention22

.

An asylum seeker is a person arriving in a foreign country to claim refugee status. Refugee

status may or may not be granted after a determination procedure. When asylum seekers

do not receive refugee status, they are either instructed to return to their countries of origin

(deportation) or asked to leave the UK and be removed to a safe third country (removal), or

they are granted temporary admission. The latter takes the form of either humanitarian

protection (an initial 5-year entitlement to stay in the UK, reserved for those who face a

serious threat, such as assassination or torture, in their countries of origin) or discretionary

leave (admission for a period that is usually limited to 3 years). The determination procedure

is particularly resistant towards migrants who want to stay in the United Kingdom purely for

economic reasons.

The legislation which permits the detention of individuals seeking asylum in the UK is

derived from Immigration Acts that have been frequently amended. The power to detain

was originally authorised in the Aliens Act 1920 and further expanded in the Immigration Act

1971, which states that an immigration officer may exercise his or her power to detain an

immigrant ‘until he is satisfied that it will not be so needed.’23

Furthermore, immigration

detention is permissible if and only if one of the following three administrative procedures

are foreseen or undertaken by the Home Office: Examination, removal, or deportation.

16. (1) A person who may be required to submit to examination under paragraph 2

above may be detained under the authority of an immigration officer pending his

examination and pending a decision to give or refuse him leave to enter.24

The National Immigration and Asylum Act 2002 also had a significant impact on the

immigration system, in some ways expanding the power to detain, by also attributing this

power to The Secretary of the State. The only two authorities that may order removal are

therefore either an immigration officer, or the Secretary of the State.

In cases of deportation, either the Secretary of State, or a court of law may judge whether

detention is necessary in the remaining period. The law implies that the announcement of

22

Tunstall. 2006. (p. 2) 23

Immigration Act 1971. Section 11 (4) 24

Ibid. Section 16 (1)

7

deportation is necessarily preceded by a period of detention. Even though detention must

never be ‘arbitrary’, it seems suspiciously arbitrary to suggest that individuals are often

necessarily liable to detention prior to being deported. Here, the UK departs from its

European counterparts in its policy. Hughes and Field note that, ‘detention during the full

determination procedure (after a claim has been determined to have some foundation and

prior to the first rejection) is rare in Western European countries apart from the UK’25

.

Alongside the UK, Australia also has a controversial reputation.

4. The Rights of Asylum Seekers in Detention

The withdrawal of rights in an immigration policy such as indefinite detention creates a new

system, in which a new set of rights must be established: the rights of asylum seekers and

refugees. The authorities strip away fundamental rights, such as freedom of movement, and

assign new ones. But the rights of those in immigration detention are often obscured when

put into practice. The rights that will be evaluated are (i) the right to information, (ii) the

right to have access to legal aid and bail, (iii) the right not to be detained arbitrarily.

(i) The right to information

In accordance with Article 5 (2) of the ECHR, immigrants have the right to know the reasons

for their detention: ‘Everyone who is arrested shall be informed promptly, in a language

which he understands, of the reasons for his arrest and of any charge against him’26

. In the

UK, this information is provided in person, and if there are language barriers, translators are

requested to interpret the information.

In view of their social and geographic isolation, detainees have the right to counselling

services and 24-hour medical services. The facilities of each detention centre as well as its

visiting hours are listed on the Home Office website27

. There are many recreational activities

that detainees can get involved with, such as arts and crafts sessions, language classes and

job-training. Prospective visitors and lawyers are both normally required to give advance

notification of their visits by telephone, but in some centres even this is not required. Each

visitor is required to take passport identification, and their belongings are scanned prior to

entry into the centre. Visitors are typically not permitted to give anything to the detainees.

In some centres, giving them money is permitted. Detainees may only take limited baggage

into their rooms, so most of their belongings are held in safekeeping.

Despite these rights and advantages, there have been several defects in the implementation

of the asylum rights in practice. Reportedly, there have been many cases where immigrants

have been inadequately informed of the reasons for their detention. In 1994 a report by the

UK Asylum rights Campaign showed that 52 out of 125 interviewed were unaware of the

25

Hughes and Fabrice. 1998. (P. 23) 26

Article 5 (1) of the European Convention on Human Rights 27

http://www.ukba.homeoffice.gov.uk/aboutus/organisation/immigrationremovalcentres/

8

reasons for detention28

. In 2002, the Home Office report of inspection demonstrates that

the majority of detainees did not know why they were being detained at Campsfield

House29

.

Furthermore, ‘in the UK, posters giving details of how to contact the Refugee Legal Centre

(an NGO providing free legal counselling to asylum seekers) are displayed in detention

centres, but apparently not in prisons, where up to 350 asylum seekers may also be

detained.’30

Research into the provision of legal advice in detention conducted by the ICAR

found that ‘access to phones, post and faxes in detention centres are restricted’31

.

(ii) The right to have access to a lawyer and a bail hearing

In 1995, the UNHCR issued Guidelines on the detention for asylum seekers32

, it states that a

detainee should receive legal assistance; and that there should be the possibility of periodic

review.33

UNHCR establishes the right to challenge the lawfulness of the deprivation of

liberty promptly before a competent, independent and impartial authority.

However, the review and appeals procedure in the United Kingdom is not independent.

Review mechanisms in the UK are strongly criticised by the UNCHR because there is no

dialogue between the courts and an impartial body.34

Consequently, ‘UNHCR and specialised

NGOs have been campaigning throughout Western Europe for the right to have direct access

to detained asylum seekers, both in detention centres and airports’35

. This is important for

detainees as they might not be explicitly informed of their rights upon entry to the United

Kingdom. Hughes and Field also note that at points of entry, immigrants are sometimes not

informed of their right to contact a lawyer.

The appeals process is not made simple for immigrants. It is possible for an immigrant to

appeal on the grounds of facing discrimination in his or her home country on the basis of

Article 1(2) of the Refugee Convention; or on the grounds of facing torture in his or her

home country on the basis of Article 3 of the ECHR. But LDSG have recorded numerous

individuals whose strong fears about returning to their home countries do not constitute as

enough evidence to be taken to an appeal.

In practice the only means by which an immigrant in detention may go on trial is through

bail. Bail is the process by which individuals who have been arrested or detained may be

temporary released through a third party. Bail requires security, either in money, or

property, or forms of goods. Conventionally, bail requires a sum of money on which an

applicant can be released. The ICAR estimates this sum as ranging between £2,000 and

28


Tunstall. 2006. (p. 4) 30


ICAR Briefing. 2007. (p. 9) 32


Ibid. (p. 156) 34

Ibid. (p. 32) 35

Ibid (p. 29)

9

£5,00036

. The bail is set according to the judged danger of the applicant - the higher the

danger, the higher the bail is set. One of the main reasons bail is apprehensively granted to

immigrant detainees is because there is a risk that they will abscond.

The possibility of being released on bail is therefore remote. The UN Human Rights

Committee notes with concern that ‘adequate legal representation is not available for

asylum seekers effectively to challenge administrative decisions’.37

Legal representatives are

often reluctant to make a case for detainees because the centres are difficult to reach. Of

the thirteen detention centres in the UK, only two of them are in the London area, and they

are next to airports. Also, detainees sometimes get transferred to a different detention

centre, making it even more difficult for lawyers to trace them and organise an efficient case

for them.

The barriers to getting bail are: an unsympathetic judiciary (in court); lack of language skills

and understanding; lack of social ties; knowledge of an imminent removal; a criminal record;

a history of absconding; and no address to which to be bailed. Another barrier enrobed in

bureaucracy is The Asylum and Immigration Act 1996 that introduced new administrative

forms, which makes the process of applying for bail even more multifarious.

Legal aid is given on the basis of a means-test, funded by the Legal Services Commission

(LSC), a body which also funds the medical needs of asylum seekers and refugees. In order

for an immigrant to be eligible for legal aid, he or she must be underprivileged. The use of

funding for bail applications is subject to a merits test, which requires the legal firm to assess

the chances for the case to succeed, which should be higher than 50%38

.

According to Hughes and Field, the average sum required for bail is £4000, but ‘there have

been cases where bail has been refused even up to £10,000’39

. This has led to ‘more

detainees requesting bail from the AIT [Asylum Immigration Tribunal] instead.’40

The

outcome is based purely on the discretion of the judge.

The conditions imposed on individuals who get bailed are still not quite executed within

what one might think of as a democratic framework. Bail excludes one from being entitled to

welfare benefits after leaving detention; obliges one to regularly report to a police officer;

prohibits one from working; obliges one to reside at a certain address and be subject to

electronic tagging.

(iii) The right not to be detained arbitrarily under the provisions of domestic law in the

United Kingdom.

36






10

In the UK, the importance of civil liberties was marked by the establishment of the Human

Rights Act 1998. The Articles enshrined in ECHR are the primary weapons for the voiceless.

Section 3 of the Human Rights Act declares that any legislation adopted in the UK must be

compatible with the ECHR ‘in so far as it is possible’41

. In relation to immigration policy, the

Articles that immediately enter the equation are Article 3 (the absolute right not to be

tortured or treated inhumanly), Article 5 (the right to liberty and security of person), Article

6 (the right to a fair trial), 8 (the right to respect for private and family life), 14 (a prohibition

on discrimination). One might then ask, why are immigrants being held for indefinite periods

of time, when this is seemingly unlawful?

The reason is largely a result of conflicting laws. The most relevant is Article 5 of the ECHR,

which posits the right to liberty and the right to security simultaneously. Article 5(1) states

that, ‘Everyone has the right to liberty and security of person.’ But liberty must be

suspended in the following cases: when an individual is convicted by a court; non-

compliance with fulfilling an obligation commanded by law; in the event where there is a

‘reasonable suspicion’ that an individual has committed a crime; when it is ‘reasonably

considered necessary’ to prevent an offence or a disappearance after an offence; for

educational supervision of a child; for bringing an individual to a competent legal authority;

for the prevention of the spreading of infectious diseases, persons of unsound mind,

alcoholics or drug addicts or vagrants and lastly:

‘The lawful arrest or detention of a person to prevent his effecting an unauthorised

entry into the country or of a person against whom action is being taken with a view

to deportation or extradition’42

.

One might think that in these circumstances any protection under Article 5 is ‘illusory or

futile’43

as did H. Lambert in Seeking Asylum by Martinus Nijhof 1995. But according to

Christos Giakoumopoulo, Article 5 only permits these exceptions to liberty if it is also legal in

domestic law. Article 5 is intended to protect individuals from arbitrariness and the courts

must assess the quality of domestic law. For detained asylum seekers, Article 5 ensures that

the detention conforms to domestic law and that it adheres to diligence. The procedure is

must be subject to judicial review to ensure these measures. In this sense, relying on Article

5 can make these measures effective, as was shown in the Amuur case44

in France.

Nevertheless, Article 5 does not have a history of being effective at preventing detention

periods that are excessive. Chahal v UK45

is notably referred to in case law as the first

immigration case in which Article 3 (the absolute right not to be tortured) was applicable as

a reason for prohibiting the Home Office to enforce deportation. However, the case is

41

Section 3 of the Human Rights Act 1998 42

Article 5 (1) (f) of the ECHR. 43


Amuur v France. Immigrants were detained in an airport for 15 days without access to legal

humanitarian and social assistance. The ECtHR concluded that there had been a breach of Article 5(1). 45

Chahal v United Kingdom (1996) 23 EHRR 413

A Sikh from India claimed that he would be tortured if deported. The government argued, on the

basis of previous upheavals, that he was a threat to national security.

11

significant for another reason too. The appellant was detained for six years and three

months whilst the deportation proceedings were in progress. So, while the case pinpoints a

celebration of democracy and respect for human rights due the recognition of Article 3 on

an international scale, it still stands that the appellant’s detention period was inhumanely

extensive.

The case was put to the European Court of Human Rights which found no violation of Article

5(1). The court did not consider the period of six years and three months unlawful. It only

took into account the initial three-and-a-half year period, because during that time, the

government was still considering deportation. But it was argued that ‘none of the periods

taken by the courts or the executive … could be regarded as excessive’46

.

However, the court did find a violation of article 5(4) in that the deprivation of liberty should

be subject to effective judicial control. The justification for detention was an alleged threat

to national security, and the courts had no access to evidence.

So primarily, the purpose of Article 5 is solely to protect individuals from facing detention

arbitrarily. It is not made explicit in Article 5, but detention ceases to be justified when the

reasons for it are not carried out with ‘due diligence’47

. Arguably, if Article 5 is to protect

individuals from arbitrariness effectively it should set a time-limit for those who do not face

a criminal conviction.

5. How can we judge whether a detention order is ‘necessary’?

The international consensus is that immigration detention may be ordered if and only if it is

necessary. But what qualifies as necessary? This is evaluated by Karin Landgren. For her, an

action is necessary when it is ‘essential or indispensable’48

. It seems that the term must

always be expressed as ‘necessary for something’. So, to give meaning to this requirement,

the purpose of detention in any particular case must be disclosed.

The purposes that have so far been disclosed explicitly are (a) concerns for national security

(b) administrative and investigative measures. Additionally, an implicit purpose is the

deterrence of asylum seekers.

The necessity of immigration detention itself does not seem to be overtly questionable.

There needs to be a way to accommodate asylum seekers during their determination

procedures, and to prevent the risk of absconding. The detention centres, in so far as they

treat individuals with dignity, are not outrageous. It might be inappropriate to suggest that

immigration detention should not exist at all, because there are undoubtedly security

benefits to having a stringent system. It may further be argued that unfettered migration

will destroy the state.

46


Ibid. (p. 176) 48

Ibid. (pp. 146- 147)

12

However, it is the prolongation of detention that requires an explanation. It is not that

immigrants’ rights are set aside, but rather than they are set aside indefinitely. Surprisingly,

‘judicial review of detention is almost always limited to the legality and procedure of

detention: length of detention is very rarely taken into consideration’49

. The Chahal case

cited above is an example of this point. Yet, the indefinite aspect of detention is what the

detainees are commonly most distressed by (as expressed by their testimonies).

The cases that have protested excessive detention, via Article 5 (the right to liberty) have

often been unsuccessful because their cases have been ‘pending’50

. It is easy for the

authorities to argue that the extended detention is or was necessary for administrative

purposes, and for the prevention of absconding. Therefore judgements which do not

address the need for a time limit are technically in conformity with the law.

Grahl-Madsen states that detention must not be used for administrative convenience, and

must ‘really be deemed necessary’51

. He alludes to necessity only in terms of a crucial

investigation, strictly related to assessing travel documents. Lord Justice Woolf stated that:

‘[Continued detention] cannot be used for any other purpose’ and it must be ‘limited to a

period which is reasonably necessary for that purpose’52

. It follows that if ‘necessity’ is used

to define reasons such as deterrence, then it is evidently not in accordance with the law.

Arguably, the use of detention in order to verify identity cannot be justified by a length of

more than a few weeks ‘in these days of high technology databases and international

exchange of fingerprints’.53

And if detention is not used to verify identity, and it is not for an

administrative procedure, then it seems to be used for the purpose of deterrence. Hughes

and Field argue that it would be naïve to characterise detention solely as a consequence of

restrictive policies, because ‘current trends would justify describing detention as an

instrument of deterrence in its own right’54

.

6. What moral issues does it raise?

The coupling of deterrence and detention creates the view that indefinite detention is an

appropriate means to achieve deterrence. The line of argument here is that, even if the

government aims to deter asylum seekers, it should do so by other means.

The current detention practice is damaging to individuals, and to the UK’s reputation. The

migrants who are fleeing a crisis in their home countries are being marginalised in society,

and ‘the system does not draw the line at refusing to protect such people; rather it goes as

far as to actually punish them, by detaining them’55

.

49


Ibid. (p. 175) 51

Ibid. (p. 147) 52

Johnston. 2009. (p. 354) 53


Ibid. (p. 6) 55

Johnston. 2009. (p. 358)

13

6. 1. The problem with criminalising immigration

It is rare for asylum seekers in detention to be charged with another offence other than

illegal entry which, as I argue, is not necessarily a “crime” in itself56

. Notably, Caryl Phillips

makes the distinction between voluntary and forced migration. The former is a human

instinct connected to the desire to improve oneself as a being, and to flourish as an

individual. The latter is, however ‘bewildering, leaving psychic wounds’57

. It is thus straining

on the human psyche to criminalise the immigration, since emigration happens frequently,

either out of duty, or out of a natural instinct to prosper in the world.

The most legitimate reason for an immigrant arriving at UK borders without sufficient

documents is for the purposes of survival. It is an instinctive act, in reaction to a life-

threatening crisis. In the majority of cases, immigrants are not allowed to return to their

home countries, due to potential persecution from governments which take a hard-line on:

certain religions, social practices, political beliefs, and sexual orientations. In these cases, the

immigrant in question is trapped in no-man’s land. The use of false documents may be a

reaction to increased border controls, such as stringent visa requirements and carrier

sanctions.

Nevertheless, the evidence shows that ‘it is increasingly the case that arrival without

documentation is accepted as sufficient evidence that the asylum seeker will fail to comply

with the procedure’.58

But what counts as a ‘serious’ reason? Does the reason have to

suggest a direct and imminent threat, or can it be implicitly serious? The obscurity of the

answer to this question gives room for the authorities to detain any immigrant on the basis

of a mere subjective instinct.

The subjectivity of this judgement can be seen in research by the University of Cambridge

which highlighted that immigration officers may experience ‘peer pressure when deciding to

detain someone, as they may feel duty bound not to reverse or challenge another

colleague’s decision.’59

It therefore seems inhumanly disproportionate to detain someone who has not presented

themselves as being a direct and imminent threat to society. It is possible to conceive of

asylum seekers who aim to take advantage of the state and taxpayer’s money, and want

nothing more than to thrive on the basis of illegal documentation. But it is also possible to

conceive of asylum seekers who are willing to work hard, and merely wish to protect

themselves and their families. In these cases, detention is an improper response to their

arrival at the UK.

56


Tunstall. 2006. (p. 10) 58



14

The alternative to is detention is destitution. It requires immense diligence to identify the

individuals who need state-protection the most, and the absence of this diligence has

caused ‘Thousands of people from Zimbabwe and Sudan… refused asylum, destitute,

prohibited from working and unable to safely return home.’60

Article 33(1) of the Convention states that it is impermissible to remove refugees, but Article

33(2) stipulates that this does not apply if the refugee in question is a ‘danger to the

community’61

. The danger to a community is considered by a refugee’s reputation, and

whether he or she has previously committed a crime. Johnston deduces that ‘this power

may be used to detain those who have already undergone lengthy detention and worse, in

order to get to the UK’62

. Essentially, therefore, those who have completed their sentences

(even for minor offences) will have to serve yet another prison sentence because of this

administrative procedure.

6. 2. The distortion of public interest and other types of state-ordered detention

Alcoholism and Mental Illness

The criminal justice and mental health systems in the UK deploy indefinite detention in rare

cases. Non-consensual detention in these cases can be justified. The alcoholic who is

detained is detained for his own wellbeing (as well as for the wellbeing of others). The same

applies to the person of unsound mind. The prescribed detention is for the benefit of the

surrounding community, as well as that of the individual.

For example, in accordance with the Mental Health Act 1983, individuals with an identified

mental health disorder may be admitted to hospital against their will. The BBC reports that

in 2000/2001, 26,707 individuals were formally admitted against their will, in addition to

19,570 who went voluntarily to hospital, but who were then sectioned63

. Whilst this may be

controversial, it is generally accepted as necessary not only to ensure safety to those in the

company of persons of unsound mind, but also for their own safety. The act of detaining in

these cases presents an equal concern for both the wellbeing of the individual and the

wellbeing of the community.

But the immigrant gains nothing from being detained. The general system of proportionality

requires public interest to be weighed against the preservation of liberty of individuals, and

the former takes priority. Johnston states that, ‘in adopting this approach, the court has

tried to strike a balance between the needs or wants of the wider community with the

fundamental rights of those with alcoholism or mental illness. With immigration detention,

there is no such balance’64

. In agreement with this view, the balance has been conceived on

60

Williams and Mike. 2010. (p. 4) 61

Johnston. 2009. (p. 353) 62

Ibid. 63

BBC. 22nd

August 2002. http://news.bbc.co.uk/1/hi/health/2204983.stm 64

Johnston. 2009. (p. 360)

15

the basis of a distorted opinion of public interest, which in turn has created a policy inflated

with contradictions.

The distorted representation of public interest can be demonstrated by a YouGov poll, which

reveals that 67 per cent of British public disagree with indefinite detention of refused asylum

seekers. The poll commissioned in January 2009 gave a sample of 2157 people four typical

case studies of long-term detainees and asked them whether they should be detained or

released.

Interestingly, the results of the poll were dramatically different, depending on the way the

questions were framed. According to Jerome Phelps, in the poll above, the questions were

framed compassionately. In cases where the wording evoked hostility (using language such

as ‘foreign ex offenders’), there was a two thirds majority in favour of indefinite immigration

detention. In cases where the questions were phrased in a manner that they evoked

sympathy, there was a two thirds majority against indefinite immigration detention65

.

Terrorism Law

The original premise in law-making was that executive detention is only justifiable in a public

emergency. This shaped the policy for detention without trial for terrorist suspects, which,

during the IRA’s guerrilla war with England, was only 7 days. In 2006, the government

attempted to set a new time limit of 90 days, which then became 28 days. Following

immense public pressure, Theresa May announced the reduction to 14 days in May 2011.

However, it seems as though the authorities are initiating a step backwards. In June 2011,

The Joint Committee on the Draft of Terrorist Suspects66

invited organizations and

individuals to give evidence to review counter-terrorism law. They were considering

extending the time limit of detention orderings to 28 days. The debate raised the question of

whether an extension beyond the current 14-day time limit should be made legal, and

whether it should be enforced exclusively as an emergency legislation, or for whether it can

be permissible as an administrative measure too.

The majority held that it is unnecessary to extend detention for terrorist suspects beyond 14

days. The proponents of the current law, at 14 days, argued that the current time-frame is

sufficient. If in exceptional cases, more time is required for investigation, the police should

put longer hours into the task, or involve more people to make the workload manageable

within the time-frame set by the law. The emphasis was on ensuring that everything could

be done to meet the requirements of the law – instead of permitting flexibility for

administrative convenience.

65

LDSG. 2010. Unpublished Press Release (attainable by request from Jerome Phelps). 66

Parliament. 23rd

June 2011. http://www.parliament.uk/business/committees/committees-a-

z/former-committees/joint-select/joint-committee-on-the-draft-detention-of-terrorist-suspects-

temporary-extension-bills/publications/

16

Criminal Law

The rule of law in the United Kingdom is that suspected criminals are to be treated as

innocent until proven guilty. On the contrary, asylum seekers are automatically launched

into a system whereby they are guilty until proven innocent. Moreover, the burden of proof

is so high that the act of proving oneself innocent as an asylum seeker is becoming

increasingly difficult. An article in The New Yorker from August 2011 depicts the wild

imagination that some asylum seekers must have in order to make a valid claim for asylum

using the principle of non-refoulement – ‘It’s not enough for asylum applicants to say that

they were threatened, or even beaten. They have to furnish horror stories’67

.

In contrast to the proceedings in criminal law, immigration detainees do not have an

absolute right to a bail hearing. The law that provides bail hearings to every immigrant in

detention was authorized in 199968

but it was repealed in the Nationality, Immigration and

Asylum Act 2002. The reasoning was one of logistics, because if bail were granted to every

individual, it would be ‘inconsistent with the need to streamline the removals process and

would be unworkable in practice with the continuing expansion of the detention estates.’69

Paradoxically, the media sent this message out on 30th

June 2011: “Bail ruling ‘will let

murderers go free’”, as it appeared in bold across the front-page of the Evening Standard,

because a High Court ruling resulted in suspects now having to be charged after 96 hours of

their arrest, ‘much to the dismay of police, politicians, and human rights campaigners’70

.

The justification for this is to end the long-standing practice of releasing suspects on bail

until investigations are complete and then charging them weeks or months later. But

Theresa May expressed a concern over the fact that approximately 85,000 suspects were on

bail at the time. Sir Norman Bettison, Chief Constable of West Yorkshire said: ‘We are

running around like headless chickens, wondering what this means to the nature of justice’71

In the same newspaper on the same date, there appeared an article about a banned hate

preacher fighting deportation on the grounds of Article 10 of the ECHR (freedom of

expression). A banned Islamic extremist ‘who entered Britain unchallenged may remain in

the country for years after launching a bid to fight deportation’72

.

So, it is permissible for criminal suspects to remain free of charge after 96 hours; it is

permissible for terrorist suspects to remain free of charge after 14 days; but it is not

permissible for asylum seekers to be free of charge until their cases are assessed,

irrespective of the time frame. The incongruity suggests that the current immigration system

is flawed, depriving immigrants of their civil liberties.

67

Mehta, Suketa. 1st

August 2011

http://www.newyorker.com/reporting/2011/08/01/110801fa_fact_mehta 68


Ibid. (p. 10) 70

Radnedge, Aidan. 11th

June 2011. (The Evening Standard) 71

Ibid. 72

Harper, Tom. 11th

June 2011. (The Evening Standard)

17

6. 3. The human cost

What is the human cost of being detained indefinitely? Stephanos Bibas says of individuals

who experience pre-trial detention that ‘eventual acquittal can be a somewhat hollow

victory, in that there is no way to restore to the defendant the days already spent in jail’.73

There are a profusion of sources, which describe the severity of pain experienced by

detainees. It is the force of these testimonies that give one a better idea of whether the

correct balance between public interest and human-rights sacrifices has been properly

addressed.

The research conducted by LDSG and the testimonies of former detainees confirm that

immigration detention has a devastating impact on their mental health. The evidence shows

that indefinite detention brings about ‘suicidal thoughts, suicide attempts, self harm,

depression and post traumatic stress disorder’ because not knowing the length of detention

makes it feel like a life sentence74

. Ahmed Abu Bakar Hassan, a genocide survivor from

Darfur, who has been detained for 27 months said: ‘The door is locked, no window. I feel

suffocated.’ Ahmad Javani, detained for 13 months, said: ‘Maybe they aren’t human or I’m

not human.’ 75

According to Hughes and Field, ‘the cost of detaining in human terms cannot be over-

stated’76

. The feelings experienced by a detainee are those such as ‘powerlessness, passivity,

humiliation, fear of the unknown, and possibility of being returned to the country where he

or she may be at risk of persecution’77

which can result in depression, aggression, even self-

harm or suicide.

In January 1997, 17 detainees went on hunger strikes in Rochester prison.78

Furthermore,

the ICAR Briefing reports that there have been ‘riots, hunger strikes and arson attacks, such

as the major fire at Yarl’s Wood in 2002, where due to lack of proper records there is no

knowledge of how many detainees absconded during the fire or even if any were killed’79

.

The most recent incident occurred in Campsfield House, ‘when on 14 March 2007, seven

staff and two detainees were injured in a fire after a riot broke out that was reported to

have started after attempts were made to remove an Algerian man’80

.

The ICAR Briefing states that the manner in which detainees with mental health problems

are handled has been strongly criticised. For example medical emergencies or suicide

attempts do not necessarily lead to release; instead they may lead to a detainee being

73

Bibas, Stephanos. 2004. Plea Bargaining outside the Shadow of Trial. Harvard Law Review (pp. 2463

– 2547) 74

Phelps. 2010. (p. 14) 75

Ibid. (p. 3) 76


Ibid. 78



Ibid.

18

transferred to a high security prison.

Alison Harvey81

stated that detainees who showed signs

of mental illness were returned to detention centres after they have been cured.

Furthermore, deaths in immigration detention do not have to be reported to any outside

agency. The organizations providing legal aid have reported concern for detainees not

receiving adequate support82

and campaign groups predict that the actual numbers of self-

harm incidents to be higher than reported.83

BID notes that the lack of a statutory time limit

for immigration detention results in increased uncertainty and frustration amongst

detainees.84

The highly vulnerable groups of people often feel so distressed that they are

unable to speak about their experiences, or their medical needs.

6. 4. The financial cost

In the majority of cases, indefinite immigration detention does not lead to deportation. The

LDSG published a campaign which gives an insight into the ineffectiveness of detention from

an economic perspective.

The LDSG conducted research revealing that the policy of detaining refused asylum seekers

is costly in human terms as well as financial terms. The statistics are related to 188

immigrants who had been detained for over a year last year. On average, 18% of detainees

have been deported in total. It is thus transparent that prolonging detention rarely succeeds

in resolving the barriers to deportation. Yet, individuals who cannot be deported, or granted

entry to the UK, continue to be detained. The most recent estimates show that the financial

cost of detaining refused asylum seekers costs the taxpayer over £68,000 per detainee per

year. The detentions of the aforementioned 188 individuals have cost over £22 million in

total.

7. What is the most acceptable form of action to take in response to failed asylum

seekers?

The right to control immigration has been a long-standing sovereign right of states in

modern democracies. Peter C. Meilaender defends the view that states are entitled to form

their own immigration policies on the basis of particular historical backgrounds, cultures and

interests. In considering what brings us together as a political community, he cites Plato,

who spoke of the need to tell citizens the ‘noble lie’ of ethnicity, to persuade them that they

are all related to each other sharing intimate bonds, enjoying a familial relationship within a

particular territory.85

This view does not stand in opposition to the stance of this essay. If the UK were to take up

immigration policy on the basis of its historical background, in some ways, it would promote

81

General Secretary of Immigration Law Practitioner’s Association. (ILPA) 82


NCADC (February 2007) Self-harm in Immigration Removal Centres 84

Bail for Immigration Detainees (September 2002) Submission to the United Nations Working Group

on Arbitrary Detention: Immigration detention in the United Kingdom 85

Meilaender. 2001. (p. 4)

19

greater respect for human rights. As was explained at the outset of this essay, the UK’s

democracy is a double edged sword. Despite its approval of indefinite detention, it has been

a long standing proponent of civil liberties. In the seventeenth century, the Magna Carter

and the Bill of Rights 1689, diminished the absolute sovereignty of the monarchy. The

Habeas Corpus Acts were formed during the same period.

Surprisingly, there is little literature which relates habeas corpus to asylum rights. It is rarely

applied to immigrants in practice, but there is still hope that these principles can be revived.

Johnston quotes Lord Atkin’s dissenting opinion against an impulsively ordered detention by

the Home Secretary in 1939: ‘In this country, amid the clash of arms, the laws are not silent.

They may be changed, but they speak the same language in war as in peace.’86

Forty years

later, Lord Scarman reportedly ‘dismissed the idea that this protection might be contingent

on nationality, stating unequivocally that everyone within the jurisdiction is entitled to equal

protection’87

. Further, there have been a few detainees who were successfully bailed out via

habeas corpus in 1995.88

The challenge would be an egalitarian argument. That is, all moral agents should be treated

equally. The policy of indefinite immigration detention is evidently not economically

efficient. And if market liberals advocate a flow of goods and capital across borders, then

they should also accept that individuals may wish to invest their labour in the same way. It

needs to be recognized that the social consequences of deregulating the flow of people

would not be dissimilar to the social consequences of deregulating the flow of goods and

capital. National citizenship is not more worthy than the social benefit of freedom of

movement for all innocent persons. The unification of migrants and citizens forms a large

part of public interest.

Hughes and Field state that lawyers generally push for a policy where authorities should

form credibility of asylum claims on the basis of ‘accumulative evidence’ rather than refer

back to initial decisions, because ‘expectations with regard to the outcome of the claim are

not static and should therefore be continually re-examined after someone has been

detained’89

. In agreement with this view, a post-monitoring stage is crucial and applicants

should be released after a certain fixed time period, with a view to being monitored after

this fixed period of detainment.

The research has shown that alternative methods of surveillance (such as electronic tagging)

can be just as effective as detention - of those granted bail, 80% of asylum seekers kept their

conditions of bail.90

It is not clear what happened to the remaining 20%, but the general

statistics show that the vast majority of asylum seekers are compliant. Further, Connor

Johnston deploys a slippery slope argument: ‘the converse of this rationale carried to its

86

Johnston. 2009. (pp. 362-363) 87

Ibid. 88

Full stories here: http://www.independent.co.uk/news/uk/court-ruling-gives-hope-to-asylum-

seekers-1570062.html 89


Johnston. 2009. (p. 361) - Research conducted by South Bank University

20

logical extreme is that any risk of flight no matter how small would justify continued and

indefinite detention’91

.

8. The Recent Statistics and a Proposal for Reform

There are thirteen removal centres for asylum seekers in Britain, some of which are run by

private security companies, whilst others are state-run by the Prison Service. The ICAR

Briefing states that prior to 2002, ‘Immigration Removal Centres’ were called ‘Detention

Centres’. The Nationality, Immigration and Asylum Act 2002 brought about the name

change92

, but the function of the centres and the specifications for the detention remained

the same. It seems that the name change occurred primarily to disassociate the practice of

immigration detention with the nature of imprisonment, as a means to gloss over an unjust

practice, creating a false distinction between ‘detention’ and ‘prison’.

The newest immigration removal centre in the UK is Morton Hall, which was opened on 1st

June 2011. ‘No borders Activists’93

protested outside the opening (conducted by immigration

minister Damien Green) expressing their rage at the opening of an additional centre. The

generic Home Office policy concerning detention is that it should be used ‘sparingly and for

the shortest period necessary’94

as a last resort. If this is the case, then one might question

why there are so many detention centres.

There has not been a sudden increase in asylum applications, nor has there been a

catastrophe that requires a larger number of people to be detained. Rather, the number of

asylum applications have fallen in very recent years. The graphs below confirm this:

Applications for asylum, UK, 1992-2008

91

Ibid. 92


http://www.nobordersnottingham.org.uk/regional-news-and-events/protest-on-the-day-of-

moreton-hall-detention-centre-official-opening-june-1st-2011/ 94

Johnston. 2009. (p. 353)

21

Applications for asylum, UK, 2001-2010

The consequences of the fall cannot be explained with certainty, however tougher border

controls (such as increased visa restrictions and carrier sanctions) may have resulted in the

relative decline in the number of asylum seekers.

The majority of states claim that detention is used ‘minimally’95

however the most recent

statistics demonstrate that it is not decreasing in the UK. It is difficult to trace definitive

numbers of immigrants and asylum seekers who face indefinite immigration detention every

year, but there are figures published by the Home Office Control of Immigration. Since 1995

the Home Office has published statistics of each quarter (showing three-month snapshots)

rather than annual statistics.

Number of Immigrants Entering Detention in Each Quarter

0

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

2009 (Q1) 2009 (Q2) 2009 (Q3) 2010 (Q1) 2010 (Q2) 2010 (Q3) 2011 (Q1) 2011 (Q2)

95

Hughes and Liebaut. 1998. (p. 1)

22

As shown by the graph, there has been no real decrease in the use of detention, despite a

drop in the middle of 2010.

In order to utilise these findings for a legitimate policy proposal, the graph below has been

compiled to show how long most detainees are held in detention. This should indicate the

approximate time necessary for the determination procedure.

Length of Detention Prior to Departure

(First Quarter of 2011)

0

500

1000

1500

2000

2500

3000

3500

4000

4500

5000

29 days or less 29 - 60 days 2 - 4 months 4 - 6 months 6 months + 1 year +

The statistics from the previous quarter demonstrate that approximately two-thirds of

detainees are held in detention for 29 days or less. It follows that there is a high likelihood

that the investigative work can feasibly be carried out within this time-frame.

Even though there are a third of people are detained for longer than 29 days, the

justifications for these extensive detentions are weak, as I hope to have shown in this essay.

Of the 7,015 individuals who entered detention, 4,635 were detained for 29 days or less,

whereas 115 were held for over a year.

The fact that indefinite detention is used very rarely in other forms of state detention in the

UK shows that investigative and administrative should normally not take up to a year. Even

though there needs to be improvements in other states in relation to immigration detention,

most European states are now being pressured to set time limits. The time-limit in France is

currently set at 32 days. The only case in which it should be permissible to extend

immigration detention beyond the time limit is where there is a serious direct and imminent

threat to national security, which is tied to the individual in question.

23

Conclusion

It has been argued that extended immigration detention only worsens the reputation of

asylum seekers as ‘abusers of the system’ as it criminalises them. ‘Such perceptions can

trump sober analysis in policy formulation, leading to the use of detention in response to

political pressure, rather than as a last resort’96

. Further, the cost of detention (both the

human cost and the financial cost) is not proportionate to its ‘legitimate aim’. In many ways,

the research has shown that indefinite immigration detention is ineffective for its own

purposes. It is possible to conceive of more humane and more economically valuable

safeguards to prevent immigrants from absconding. The alternative methods are in the form

of supervision, electronic tagging, and other monitoring procedures.

The most appropriate solution for the ongoing issue is to set a time-limit for immigration

detention in the United Kingdom. In this essay the proposed time limit is 29 days. This does

not depart hugely from other European States. Thomas Hammarberg, the Commissioner for

Human Rights of the Council of Europe recommended in September 2008 that ‘a maximum

time limit for administrative detention be introduced into the United Kingdom legislation, as

is the case in France and certain other Council of Europe Member States.’97

The UK should

act upon this recommendation, so that asylum seekers are not subjected to arbitrary

detention, which would be considered unlawful. When a detainee cannot go back to their

country of origin, detention cannot be justified since it relies on the idea of a choice that in

reality may be non-existent.

The campaigns adopted by various voluntary organizations indicate that a fight back has

already commenced. The Coalition’s decision to end immigration detention for children in

December 2010 has been a positive step forwards. There is optimism in sight, and by making

campaigns that are accessible as well as creative, one might hope to change the culture in

government, eradicate discrimination, and improve the quality of decision making.

96

Alperhan and Briskman. 2008. (p. 159) 97

Post by LDSG. 28th

January 2009.

http://www.ldsg.org.uk/files/modules/news/article.php?storyid=19

24

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Indefinite Immigration Detention in the UK: The Double-Edged Sword of Democracy

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