Illegal detention
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This article is written by Gitika Jain, from Amity University, Kolkata. This is an exhaustive article which deals with the claim for damages of refugees against illegal detention of government with reference to DN (Rwanda) v Secretary of State.

Introduction

With far-reaching consequences in a fresh development, the United Kingdom Supreme Court made the most remarkable, landmark and extremely laudable judgements in DN v Secretary of State for the home department. The statement was made on 26th of February 2020 where a note was sent by the supreme court in a simple message which was sensible and straight that refugees can pursue their claim for damages against the government for illegal detention. In simple language, no government was allowed to claim an unrestricted right to hold a refugee in illegal detention and this is what the exact summation of the commendable judgement that was delivered by the UK Supreme Court and was applauded in no uncertain terms. 

Concept of immigration detention

The term which is used to describe the detention of people who were subject to immigration control by the representatives of their home offices is known as immigration detention and there is no limit in UK law on how long a person can be detained for and the decision of the same can be made by individual immigration officers. Where there is no automatic right to immigration bills it becomes really difficult to hold the home office accountable for such decisions relating to detention.

The case

This judgment was authored by Lord Care along with Lord Wilson, Lady Black and Lord Kitchin who agreed to set the ball rolling by pointing out that the appellant was born in Rwanda. The appellant arrived in the United Kingdom in August 2018, was demanding refugee status because he claimed to be well-founded, fear of persecution after he returned to his native land. On 26th October 2003, it was accepted on the grounds that he was a member of a social group (Hutu). He was given the status of refugee pursuant of 1951 refugee convention and was granted indefinite leave to remain. 

It was further pointed out that since he arrived in the United Kingdom, DN has been convicted of various offences. He was also given a warning twice. The most significant and important convictions that happened was on 22nd January 2007 when he pleaded guilty for assisting the unlawful entry of non-EEA Nationals to the United Kingdom violating Section 25 of Immigration Act 1971. Because of that, the circumstances were formed where:

  • DNR and his sister travelled to meet his niece in the Netherlands. When DN returned to the United Kingdom with his niece, his niece used his sister’s travel documents to enter into this country and although this was recorded to be a serious offence which was accepted by a trial judge and declared that DN had no financial motive for the crime.

To ensure the same, the court which pleaded him guilty to the immigration office, DN was convicted again for being guilty of three officers for obtaining or attempting to obtain an advantage by trying to take employment in another’s name. As a result, he was sentenced to 12 months of imprisonment for violation of immigration act and two months consecutively for each of three advantages making the total sentence of 18 months imprisonment.

On 2nd July 2007 DN supposed to have completed the custodial element of his sentence and on the same date, the home secretary decided to make his report on the grounds of his refugee status. This was followed by the decision on 3rd July that DN must be deported under Article 32 of refugee convention that gives allowance for the expulsion of refugees where there are reasonable grounds of the danger of the security of that country. It was also further said that being convicted of some serious crime, DN constituted a danger to the community. The decision, therefore, was based upon Section 72(4)(A) of Nationality Immigration and Asylum Act of 2002, notified that the decision to deport him back and detain on 2nd July 2007 was according to schedule 3 of Immigration Act 1971 which states that notice has already been given of the decision of the person to deport him and detain on the authority of the secretary of state it must be done. 

The powers mentioned under Section 72(4)(A) of 2002 Act need the home secretary to make Nationality Immigration and Asylum Act 2002, order 2004, which specified various offences that were said to be serious crimes. Assisting unlawful immigration to a member state while violating Section 25 of 1971 Act was included in that order and on the basis of that, the conviction of the appellant for immigration office was deemed and was ordered for his deportation. Section 72(4)(A) also provided that any person who has been convicted of the offences that are specified in 2004 order have to be presumed to be guilty of some serious crime and are considered to be a danger to the community.

For the DN, appeal to the home secretary is a decision which was heard by the Asylum and Immigration Tribunal on 22nd August 2007. But the tribunal dismissed this appeal on 29th August when it found that the appellant was regarded to be a danger to the community of the United Kingdom because he attempted to circumvent the immigration law. DN was planned to be expelled under Article 33 (2) of the refugee convention and he also failed to review the presumption that was created by 2004 order which specifies that the persons were convicted of any officers that were specified in that order to be convicted of some serious crime and was a danger to the particular community. Soon after that DN was sought for reconsideration of the decision and on 18th September 2007 again that was refused. A statutory review of AIT’s decision by the high court under Section 203 of 2002 act was again dismissed on 7th December 2007. The deportation order was signed by the secretary of the state on 31st January 2008 where he made an order for DN’s detention pending deportation. It was made according to schedule III of 1971 Act which was although amended, stated that where deportation order wasn’t enforced against a person that person might be detained under Secretary of state’s authority pending his removal from the particular state (in this case the United Kingdom).

Before the deportation order was made to sign no suggestion as such were made on behalf of the DN that the order of 2004 was unlawful. After this was done solid fitters who had replaced their originally acted people for DN application making the case precise to the secretary of state. On that account, an invitation to revoke the deportation order was sent by the secretary of state and was also claimed that his detention since 2nd July 2007 was unlawful. Again on 29th February 2008, the plan was released by an order of immigration judge on bail but by that time he had already spent 42 days in immigration detention.

Here undoubtedly arises a straightforward and simple question of the justification of illegal detention of DN under any circumstances and his 242 days spent in immigration detention. The justification was also not to be overlooked of his claim for damages.

In para 20 of the judgement, the most important thing to be given a need to pay heed was finality in legislation that does not give authorisation of displacement of Lumba principle. The desirable objectives according to Lord was whatever finality and legal certainty can be but that cannot terminate a clear legal right. The detention of DNA in this case on foot and his deportation order was proved to be unlawful. In this case, his detention was uniquely linked to the deportation order. The unjustification and unlawfulness of detention is not something that can be escaped of and the requirement of certainty and finality cannot affect the result.

Schedule 3 provides a standalone authority in case of lawful detention where no matter what has been done before irrespective of this fact that the decision to deport is unlawful it must be considered that the decision was wrong and should thereafter be recognised as such. The notice of the same decision was to be made along with the deportation order. Since deportation depends on lawfulness and legality, the absence of the lawful basis is not possible to breathe a legal life. 

It was also held that allowance of appeal and confirmation of the apple and to pursue a claim for damages in case of illegal detention was given and the success in that claim is the matter of the claimant and not the matter of the court because of the impossible nature of a defence to the claimant’s case was not pursued.

Everything being said it is not always the case that every country should have to follow and pay heed to what has been held by the UK Supreme Court in this landmark judgement and that the governments must be held accountable for any false imprisonment of refugees and any violation of his or her human right. There is no doubt that even refugees have a human right and they must be given conditions to entertain and enjoy their rights and if any government fails to do so then that government must be held accountable and responsible and must be ready to pay any compensation for such human rights violations as already seen in DN case of the UK.

It has been provided in Article 5 of the European convention on human rights that attention must be proportionate to objectivity and the same has been confirmed under Human Rights Act 1998 in UK law where the government says that immigration detention can only be for the shortest period of time that is a necessity and must rarely be used. 

But this is not the case anymore and with increasing amounts of cuts to public funding and decreasing legal aid providers, immigration detainees are being subjected at a large amount.

The landmark judgement of the Supreme Court, in this case, is going to affect a lot of other cases related to detention in the same position as DN, especially the decisions that were incorrect and unlawful in the past. Also, the decisions that were unlawfully in the past were taken as the basis to make the decision to retain an individual unlawful in the future as well. It has rightly been put by lord Kerr that the need for finality in litigation cannot be replaced by Lamba principal and other there are some desirable objectives justification of finality and legal certainty can not be possible by totally squashing over clear legal right. Also, it was added by lord convert that II actor theory can not also be justified by the views of the government only because there was one decision-making throughout the process that is the home secretary. 

Conclusion

Thus this topic of immigration detention is extremely debatable and controversial and it can also be extravagantly expensive. Therefore many beneficiaries of the judgement may not be able to use it as their advantage because till the time the case makes it to the court it will be introduced in a more accountable and in a more transparent manner on the detention estate because it will now be abundantly clear that the power of detention is not a power that is freestanding and the has to be disconnected from deputation decision. Further, the explanation given by the Supreme Court in diverging detention from deportation is considered artificial and unwarranted and must therefore be disapproved.

Reference


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