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Long Immigration detention periods violate ECHR Article 5 – JN v United Kingdom

Immigration detention refers to the practice of holding individuals suspected of violating their visa conditions, or who have remained in the country unlawfully, and/or are subject to deportation until a decision is made by the immigration authorities. The decision is usually either to grant them visas, release them or to deport/repatriate them to their countries of origin.

While some countries have placed upper limits on allowable immigration detention time, the United Kingdom sadly have not. As a matter of fact, the UK is the only country in the EU not to have a maximum detention time for detainees in her 10 detention centres in the UK. The EU has a Returns Directive that that have set the maximum time limit to be 18 months. France for instance, has a detention limit of 45 days. Germany has a 1-month detention period for persons for whose asylum claims Germany is responsible. The UK have opted out of the EU’s Returns Directive and have in certain cases held people up in immigration detention centres for years costing tax payers at least £97 per day (as at late 2014).

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What does the Courts think about this?

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In the case of Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270, where the claimant challenged his continuous detention by the Home Office as unlawful, the Court of Appeal held the claimant’s detention of three and a half years was lawful.

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The above decision by the court of appeal was greeted by a mixed reaction by political and legal observers. Mr. Clarke, a police inspector in the UK has expressed his concern about this. Stating his dismay as the length of time asylum seekers were held up in immigration detention centres within the UK.

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However, recently, in the case of JN v United Kingdom (37289/12) [2016] All ER (D) 142 (May) the European Court of Human Rights (ECtHR), the court held that prolonged periods of detention contravene Article 5(1)(f) of the European Convention on Human Rights (ECHR).

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A quick summary of the Article 5 of the Human Rights convention will help throw this into perspective. Click here for the entire ECHR.

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Article 5 of the European Convention on Human Rights bothers on Rights to liberty and security. It underlines amongst many other issues the fact that any detainee (who must have been detained in accordance with paragraph 1c of article 5) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.

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The full details of the Article 5 can be read below

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“Article 5 – Right to liberty and security’

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  1. 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:
    • The lawful detention of a person after conviction by a competent court;
    • The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
    • The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
    • The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
    • The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
    • 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.
  2. Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against him.
  3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
  4. Everyone who is deprived of his liberty by arrest or 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 arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

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A Call for an Official Time limit on detentions

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Reiss Edwards have now added its voice to the public clamour for an official time limit to be placed on detention periods in the UK. Taking a cushion from the latest ruling in the case of JN v United Kingdom (37289/12) [2016] All ER (D) 142 (May), the judge have highlighted a major violation of the European Convention on Human Rights.

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Great Britain is indeed a great country; economically and political powerful enough not to need others to help us with laws that protect citizens and residents from such dehumanising laws. We should not be depending on EU laws to let us know that keeping people in detention centres for more than 3 years is not just right.

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Kind regards
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