Immigration law has been an area used to develop the process of detention without trial.
This erosion to the centuries old right to habeus corpus, namely the right not to be held in arbitrary detention, has been quietly going on mainly in the area of immigration law.
The categories of people who can be detained under immigration law include:those subject to immigration control who can be detained pending a decision to grant, cancel or refuse leave to enter. Then there are those who have entered illegally, overstayed a visa, who have been refused leave to enter or failed to observe conditions attached to leave to enter. Finally, there are those who have used deception in seeking to remain and those subject to criminal court recommendation for deportation.
The decision as to whether to hold a person in a detention centre is made by an immigration officer. There is no court process involved in the making the decision, it is only when a detainee seeks bail that the courts become involved.
There are 13 detention centres around the country, 9 privately run, holding 3,397 detainees. Another 635 are held in prisons.
The latest Home Office figures for the third quarter to September 2011, show 53 of those being held for two years or more, with 127 in detention for up to two years. One detainee has spent nearly six years in detention, five detainees have been detained over four years, 11 detainees more than three years. There is no time limit on lengths of detention. The cost of detaining an individual is £110 per day.
“One of the biggest problems I’ve found from talking to detainees is the uncertainty, never knowing how long they will be held,” said Louise Zanre, director of the Jesuit Refugee Service, who contrasted the immigration detainee with the convicted criminal being held in prison. “It is different for the prisoner who knows the length of his or her sentence. For the detainee, it is just another day.”
Mrs Zanre believes the cost of the system in human terms is huge. “Detention makes people vulnerable and has a huge mental health and physical impact,” said Mrs Zanre, who would like to see a fairer system of immigration adopted.
She insists that as a minimum there need to be judicial safeguards brought into the detention process. “There need to be reviews by the courts of detention over set periods,” said Mrs Zanre.
Another example of how immigration law has been used to subvert habeus corpus comes with the detention of a number of men over the past 10 years on the basis of unseen intelligence. Most notable recently among these individuals has been the Jordanian man Abu Qatada.
These individuals, mainly Algerian nationals, were picked up at various times over the past 10 years, following the passing into law of the Anti-terror crime and security Act in 2001. This allowed for indefinite detention without trial in prison. This act was ruled unlawful by the law lords in 2004. The concept of the control order developed from this point, effectively imprisoning the individual and his whole family in a house or flat with restrictions on movement and use of things like phones and computers.
This whole process has been overseen under the confines of immigration law. So the judicial body overseeing the detention is the Special Immigration Appeals Commission – the immigration court charged with dealing with matters effecting national security.
A central element of this form of “justice” is that the individuals can be held without ever being formally confronted with what they are accused. The detention is wholly on the basis of intelligence withheld from the detainees lawyers and only available to the judge and special advocates appointed on the behalf of detainees. The call of the men detained, their lawyers and supporters has been to brought before a fully constituted court of law so that they may answer any charges presented. If they are found guilty the individuals are quite willing to serve the punishment, though if innocent they obviously expect to be freed.
This Kafkaesque form of justice now looks set to extend further beyond the aegis of immigration law, with the government’s green apper on justice and security. The proposals in the paper seek to extend closed material procedures and the use of special advocates into the civil law arena. So secret evidence – never disclosed to the claimant, let alone public or press – would be used to defend serious allegations in cases where the Government felt there was material which might ‘damage the public interest’. The only people allowed to be present would be the judge, the Government itself and the Government appointed Special Advocate.
The latest development rather confirms the assertion made for many years by lawyer Gareth Peirce who has argued that her clients being held in detention under the aegis of immigration law were being used as guinea pigs. The state would push the concept of secret evidence beyond the challenge of the normal structures of justice until it met serious resistance. To date there has been little.
The human rights organisation Liberty has mounted a campaign against the proposals in the green paper on the basis of the denial of liberty and freedom of speech. The government received a mere 90 responses when it put the green paper out for consultation.
The political parties remain ominously silent. No doubt the Conservatives and Liberal Democrats will support the measures. It has been amazing to behold how the few voices that spoke out from the Liberal Democrat Party against detention without trial over the past 10 years, like Sarah Teather and Lynne Featherstone, fell silent once in government. And the Labour Party cannot be relied upon to oppose the bill, especially given its own record of authoritarianism when in office. Since moving to opposition, shadow home secretary Yvette Cooper has notably been seeking to outflank the Conservatives on the right with her pronouncements on issues like detention of terror suspects.
This whole sorry situation underlines the dangers of a “democracy” when all the parties are lining up on the same narrow strip of ground. Effectively today in the UK there is no party that can be relied upon to defend the basic human rights of the people and that includes things such as habeus corpus.
This insidious demolition of basic liberties has been going on for a number of years now, most recently under the cover of immigration law. Now it looks to be spreading. People need to support the Liberty campaign and make their MPs aware of just what is going on in the name of providing security to the people. The cost are our most basic liberties, as an authoritarian state is being shepherded in by the back do
* See more about Liberty campaign For their eyes only at http://www.liberty-human-rights.org.uk/campaigns/for-their-eyes-only/for-their-eyes-only.php