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Beyond immigration detention: The European Court of Human Rights on migrant rights

The United Kingdom detains ‘far too many [migrants] unnecessarily and for far too long’. This makes the system ‘expensive, ineffective and unjust’. Such are the conclusions that a cross-party parliamentary inquiry reached earlier this month.

Over 30,000 migrants, including rape and torture victims, are detained in the UK in the course of a year, a third of them for over 28 days. Some detainees remain incarcerated for years, as Britain does not set a time limit to immigration detention (the only country in the European Union not to do so). No detainee is ever told how long his or her detention will last, for nobody knows. It can be days, months or years.

‘Shocked’ by some of the testimonies they heard, the members of the parliamentary inquiry have concluded that ‘little will be changed be tinkering with the pastoral care or improving the facilities’. They have said immigration detention must become a last resort and not be allowed to go on for over 28 days.

Activists have welcomed these recommendations, whose release has coincided with Channel 4’s broadcasting documentaries revealing the reality of life inside Yarl’s Wood immigration removal centre through the use of hidden cameras. The hope is that the UK is on the brink of a turning point in its immigration detention policy.

Improvements, however, will not go to the heart of the problem. Although the inquiry calls for ‘radical’ change, it stops short from recommending the abolition of immigration detention. As Bosworth observes, ‘there is still no principled discussion on the removal of liberty on the basis of immigration status, nor of its purpose and effect’. The crux is that immigration detention is wrong in principle.

If this is so clear, can we at least expect immigration detention to be unambiguously denounced from other quarters, such as the European Court of Human Rights?

“The hope is that the UK is on the brink of a turning point in its immigration detention policy.”

This may come as a surprise given the way the British government talks about Strasbourg, but the short answer is no.

The leading Strasbourg case on immigration detention is Saadi v. the United Kingdom. It concerns a doctor who had fled Iraq after treating opponents to the regime. On arrival at Heathrow Airport, he had immediately claimed asylum. Three days in a row, he had been told to find boarding at a hotel of his choice and to report to the airport the following morning. As he did this for the third time, the authorities detained him.

Dr Saadi was obviously not an absconding risk. Why was he detained? The purpose of the detention was to facilitate the process of determining his asylum claim by having him at hand for any interview that the authorities might want to hold with him. Although his detention did not last long (seven days), it seemed to go against the very foundation of guaranteeing human rights and prohibiting deprivation of liberty except when this is absolutely necessary.

Despite this, the Strasbourg Court ruled that there had been no violation of the European Convention on Human Rights in this case. As a result, it is now lawful under the Convention to use immigration detention merely for administrative convenience (as long as the conditions of detention are appropriate). Out of the seventeen judges who constituted the Grand Chamber in Saadi, six judges found the outcome abhorrent. They ended their dissenting opinion with the following words:

“Are we now to accept that Article 5 of the Convention, which has played a major role in ensuring controls of arbitrary detention, should afford a lower level of protection as regards asylum and immigration which, in social and human terms, are the most crucial issues facing us in the years to come? Is it a crime to be a foreigner? We do not think so.”

How can we explain that the majority of the Strasbourg Court did not share this view? What are the chances of the undercurrent represented by the dissenting opinion becoming the Strasbourg mainstream? Can we draw any lesson from the way another regional system of human rights protection approach the same issue?

Feature image credit: Barbed wire prison, by stokpic. Public domain via Pixabay.

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