2Background
Right to liberty
10.The right to liberty is a core human right. It is included in several international human rights Conventions. Article 5 of the European Convention on Human Rights (ECHR), which is incorporated into UK law by the UK’s Human Rights Act, states that:
‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’.9
Article 5 (1) (f) states that a person may be deprived of his liberty if this is “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.”10 If a person is deprived of his liberty for the purposes of immigration control, then Article 5 requires certain safeguards are provided including:
“4) Everyone who is deprived of his liberty by […] detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5) Everyone who has been the victim of […] detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”11
In order to be lawful and not arbitrary, immigration detention must be clearly justified, prescribed by law, and there must be appropriate safeguards. Nobody should be arbitrarily detained. Individuals should have protection from detention even if they cannot demonstrate a legal right to remain to the satisfaction of the authorities—that is not a reason to detain a person.
11.In considering the legal framework, it is important to be conscious of the significant impact of detention, which can be traumatising. This is all the more stark given that there is no time limit to immigration detention, which is an issue of grave concern raised by members of both Houses and several stakeholders, including the Bar Council in their recent report.12 It was described in a telling way by Mr Bryan:
Box 1: Mr Anthony Bryan interview description of detention:
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“The Verne was frightening, terrifying really. I’m 60, and I thought I’d experienced a lot of things. But that was something new. It’s right by the sea. You get locked up every day. There were a lot of fights, and people fought over nothing because they have nothing to do and so much anxiety about what might happen to them. You’re locked up around people in authority, who at any time can put you in handcuffs and put you on a plane. They come to deport people in the night—it’s really terrifying. The people in the centre have done nothing wrong. They’ve committed no crimes, but they’re locked up, in detention, and they don’t know for how long. When you’re locked up but you don’t have a sentence and you’re not being punished it’s hard to keep your sanity.” |
Source: Mr Bryan interview with Sky News, 17 April 2018
12.Pierre Makhlouf, from the organisation Bail for Immigration Detainees, described the impact that detention can have on individuals:
“From the evidence that we have just heard, it is evident that, without information and some legal advice, people are completely confused. The evidence also points to the fact that, as you will see from medical organisations, the experience of detention is so traumatising that, after finding yourself in detention, to think logically about legal steps to defend yourself, to make out your claim and to understand your circumstances is almost impossible.”13
Windrush generation and the Compliant/Hostile Environment
13.Those referred to loosely as the “Windrush Generation” encompass a number of different people in different legal situations, but broadly mean Commonwealth citizens who settled in the UK before 1973. Legislative and policy changes since the post-war period have involved progressive changes to their status and documents requirements. Most of the people who have faced recent wrongful detentions were Commonwealth citizens who had a right to remain in the UK on the basis of having been settled in the UK before 1973 and having not left the UK for more than two years since 1988.
14.While in this inquiry we focussed on two examples of how two individuals came to be wrongfully detained, we are concerned that cases of wrongful detention of members from the Windrush cohort are not limited to these two examples. This is discussed in Chapters four and five.
9 Human Rights Act 1998, Schedule 1
10 Human Rights Act 1998, Schedule 1
11 Human Rights Act 1998, Schedule 1
12 Bar Council, Injustice in Immigration Detention Perspectives from legal professionals, November 2017
13 Q15 [Pierre Makhlouf]. Mr Bryan also told the Committee that if it had not been for his partner’s support, he would have given up:” I would have given up. It was too hard. I was willing to go back to Jamaica. Although I do not know Jamaica I was willing to go back, because I was fighting, fighting, fighting, fighting, fighting and I was not getting anywhere. Immigration did not believe me. Those who needed to believe me did not believe me,” see also Q14.
Published: 29 June 2018