The Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg has published his memorandum on the UK asylum and immigration system with a number of notable conclusions and recommendations. Amongst many other points, the memorandum attacks head-straight the lack of a legal framework regarding detention of asylum seekers in “Fast Track Processes”, proceedings aimed at an accelerated determination of refugee status, which coincidentally also violate a number of procedural human rights guaranteed by the ECHR. Refugee status determinations now also need to comply with the standards outlines in the European Directive 2004/83 on the qualification of persons as refugees or as persons in need of international protection (see also El-Enany’s academic analysis).
No legal framework for immigration detention
More so, the European Court of Human Rights has upheld that where a law authorises deprivation of liberty it must be “accessible and precise” in order not to be arbitrary and violate Article 5 ECHR (the right to liberty). Whilst in fact holding asylum seekers in detention or removal centres and not reception centres is incompatible with the European Directive 2003/9/EC on minimum standards for the reception of asylum seekers. The high degree of discretion and broad powers of the immigration officers to order detention also violates the determinations of the UN Special Rapporteur on Human Rights in the report on administrative detention of migrants.
The memorandum equally recalls that the UK has been known to detain failed asylum-seekers for prolonged periods of time coming up to years in some cases without being informed about the progress of their removal procedures and are deprived of expert immigration law advice to challenge their detention. The Commissioner therefore urges the UK to drastically limit the practice of administrative detention of migrants, which as he was informed the UK government is committed to expanding in capacity by 20 per cent over the next two years (see also the BBC report).
Detention of children
The most imminent and pressing issue of concern for human rights organizations that work in the field, and particularly Bail for Immigration Detainees (BID), has been the detention of children for immigration reasons. Each year 2,000 children pass through the immigration detention centres (for BID’s report on the detention of children see). The conditions in these detention facilities are abhorrent (with no appropriate health care and prison-conditioned facilities), and a considerable number of reports have been published, both of governmental and non-governmental bodies, concerning the adverse effects that this environments has on their mental and physical health, even when, as the UK government has been known to claim, it is a matter of four to five days and in most cases less than a week until they are rehoused in National Asylum Support housing (for an informative presentation of the facts and the campaign see).
Evidently, this memorandum, which turns an additional spotlight on the human rights violations procured by the UK government through its asylum and immigration system, inter alia. means a considerable number of dramatic changes need to be implemented, particularly taking into account that the UK government has also recently announced that it will be looking to join the UN Convention on the rights of the Child 1989 properly by withdrawing the opt-out clause that it currently has on Article 3, which requires state to safeguard the best interests of the child at all times (the BBC report is available here). The opt-out is of such significance to the spirit of the Convention that arguably the UK cannot really be considered to have signed up to the Convention in the first place.
The UK government’s response
In the response to the memorandum issued by the UK government, appended to the memorandum itself, refuses to admit to the facts on the ground by persisting that “speedy decision-making does not mean rushed decision-making. It proceeds to blame the disturbances in detention centres on bullying going on between the detainees, which distracts from the central reason for this being obscenely prolonged detention periods.
Further, it repeats at two points that it “has no wish to detain families with children any longer than necessary”. Although detention “at point of removal” is known to be the longest, the UK holds that this rather “ensures that time spent in detention is limited”. Finally, it adds that detention is prolonged only as a consequence of the parent(s) attempts to frustrate the removal process.
With regards to bail and the legal advice and guidance that should be provided by the Home Office on the progress of cases, the government points to an NGO, namely BID, to affirm that bail rights are explained to detainees by a handbook published by BID and the limited number of workshops that they the government and the private company to which the running of the facilities is outsourced ever allow.
New Home Office policy on Article 8 claims
Concurrently, in the span of two weeks, the UK Home Office published its policy on considerations under Article 8 ECHR (and the Human Rights Act 1998), which presents a very brief survey of the recent case law of the House of Lords and their impact on the practice of the UK Border Agency (UKBA) and the relevant Home Office bodies as well as the Asylum and Immigration Tribunal when considering family and privates life claims.
Fortunately, the Home Office’s guidance note also makes some relieving conclusions with regards to the limited possibility of expecting an individual to return home to apply for entry clearance rather than having their claim determined in the UK, which of course does not mean that they will win their case. Nevertheless, the Home Office promises to uphold “Stage 5” of the consideration process, which assures that all relevant factors would be considered in deciding whether removal would constitute disproportionate interference with Article 8 ECHR, and the refusal should be reasoned in each individual case. At present, these statements fall very far from the reality at hand.
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