I. Introduction

As experts on the international system of protection against arbitrary detention, we have previously expressed concerns that the Illegal Migration Act 2023 (the “IMA”) conflicts with core human rights obligations relating to detention and bail under applicable regional and international instruments (Legislative Scrutiny: Illegal Migration Bill, IMB0015; analysis by Dr Garahan of the IMA’s detention provisions in the Public Law journal). While we welcome the repeal of the majority of the IMA by the Border Security, Asylum and Immigration Bill (the “Bill”), remaining provisions raise the risk of continued arbitrary and politicised detentions. We therefore urge the UK Government to repeal the IMA in its entirety. In particular, the Government risks straying into bad faith by retaining section 12 of the IMA and the widespread powers to detain asylum seekers that this contains.

This submission responds to questions 4 and 9 on the retention of certain provisions of the IMA and breaches of fundamental protections against arbitrary detention. We focus on key challenges posed by the Bill to Articles 5, 17 and 18 of the European Convention on Human Rights (the “ECHR”) and Article 9 of the International Covenant on Civil and Political Rights (the “ICCPR”).

We identify possible violations of Article 18 ECHR, which prohibits bad faith restrictions of ECHR rights, and of Article 17, which bans the abuse of rights. No Council of Europe Contracting State has ever been found in violation of Article 17. However, as retaining section 12 of the Bill continues to threaten key aspects of the right to liberty as it applies to migrants, the UK risks becoming the first State held to be in breach of the provision. Findings of Article 18 violations are less rare, but are usually established in judgments against regimes which use detention as a tool of political oppression (for example, Merabishvili v. Georgia (“Merabishvili”), 2017, and Gusinskiy v. Russia, 2004). Retention of broad discretionary powers to detain migrants creates the risk of the UK being found in breach of Article 18 for the first time.

Question 4.a

The Bill will repeal the majority of the Illegal Migration Act 2023 (IMA), but will retain various provisions.

a. Is the retention of section 12 IMA compatible with the requirements of Article 5 ECHR, previously guaranteed by the common law application of the Hardial Singh principles?

II. Breaches of Article 5 ECHR

The retention of section 12 IMA is incompatible with the requirements of Article 5 ECHR. As we have previously noted in written evidence and academic research, detention under section 12(1)(b), where examination or removal is not possible “for the time being”, is in breach of Article 5 ECHR.

Article 5 sets out an exhaustive list of grounds for deprivation of liberty. Article 5 § 1 (f) allows immigration detention only in the context of “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country” (the “first limb”) or “of a person against whom action is being taken with a view to deportation or extradition” (the “second limb”).

Article 5 requires the existence of some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (Saadi v. the United Kingdom (“Saadi”), 2008). Detention pending examination under the first limb of Article 5 § 1 (f) is thus permitted where its aim is to allow authorities to determine asylum claims quickly and efficiently (Saadi). This will clearly not be the case where examination is not possible “for the time being”.

Detention pending deportation under the second limb of Article 5 § 1 (f) is equally justified only while deportation proceedings are in progress (Chahal v. the United Kingdom (“Chahal”), 1996). Section 12 fails to reflect the ECHR principle that, where deportation proceedings are not pursued with due diligence, detention under Article 5 § 1 (f) ceases to be permissible (Chahal).

By allowing detention for such period as “in the opinion of the Secretary of State” is reasonably necessary, section 12(1)(b) conflicts with fundamental standards of legal certainty, since the “opinion of the Secretary of State” is neither foreseeable nor open to legal challenge. In requiring that any deprivation of liberty is applied “in accordance with a procedure prescribed by law”, Article 5 § 1 does not refer only to domestic law but also to the “quality of law”. “Quality of law” implies that national law authorising detention must be sufficiently accessible, precise and foreseeable in its application (J.N. v. the United Kingdom (“J.N.”), 2016, § 77). Factors relevant to evaluating the “quality of law” – also referred to as “safeguards against arbitrariness” – include the existence of clear legal provisions for ordering, extending and setting time limits for detention. The discretion left to the Secretary of State in this regard falls short of fundamental Article 5 guarantees.

Neither clause 41 on detention nor any other clause in the Bill assuage the incompatibility of section 12 IMA with Article 5. As a result, the Bill fails to attain fundamental ECHR requirements which safeguard against arbitrary detention.

Question 9

Are there any other human rights issues arising from the Bill that you wish to draw to the attention of the Committee?

III. Breaches of Articles 17 and/or 18 ECHR in conjunction with Article 5

By seeking to exclude asylum seekers from key protections granted by Article 5, the UK risks becoming the first Council of Europe State in the ECHR’s history to be found in violation of Article 17, which prohibits the destruction and excessive limitation of ECHR rights (Mozer v. the Republic of Moldova and Russia, § 222). The formulation of section 12 IMA, which the Bill retains, indicates an intent to remove Article 5 rights or restrict them to a far greater extent than is permitted under the ECHR. This raises the possibility of a violation of Article 17 taken in conjunction with Article 5.

Moreover, Article 18 prohibits any limitations of ECHR rights in bad faith. Therefore, immigration detention that is imposed for reasons other than those permitted by Article 5 § 1 (f) will be found to have an ulterior purpose. A violation of Article 18 in conjunction with Article 5 will be established where that ulterior purpose was the predominant aim for which detention was imposed.

The retention of various provisions of the IMA must be viewed in the light of the bad faith, ulterior motives behind those provisions. Broad discretionary powers allowing for the detention of asylum seekers regardless of whether examination or deportation proceedings are ongoing indicate a political motivation, rather than a permissible aim under Article 5 § 1 (f). Such ulterior motivation would place the UK in contravention of Article 18 ECHR.

In identifying the existence of bad faith, the European Court of Human Rights (the “ECtHR”) considers contextual facts or sequences of events which can ground inferences about the primary facts. Reports and findings of international observers and non-governmental organisations are often used to interpret the facts (Merabishvili, § 317).

As we have previously remarked in written evidence and academic research, the sequence of events surrounding the formulation and proposal of the IMA indicated a predominantly ulterior purpose for detaining migrants under the legislation. Numerous reports pointed to the previous Conservative Government engaging in anti-migrant rhetoric and pursuing a “hostile environment”. In particular, former Home Secretary Suella Braverman referred to the arrival of asylum seekers in England as an “invasion”, sparking condemnation from the UN Human Rights Commissioner.

The predominantly political purpose behind the previous Conservative Government’s migration policies was identified by relevant expert bodies, including the Council of Europe Commissioner for Human Rights, with UNHCR noting that Government’s distortion of facts about asylum seekers.

Section 12 IMA, which permits immigration detention in circumstances beyond those permitted by Article 5 § 1 (f), raises the risk of an Article 18 violation. This is exacerbated by the broad, discretionary executive powers to determine the length of detention. The ulterior, political purpose behind the IMA’s immigration detention powers will continue to tarnish the Bill should section 12 be retained. This would entail the risk of the ECtHR finding the UK in breach of Articles 17 and/or 18 in conjunction with Article 5. In order to ensure the UK’s compliance with its international human rights obligations, we therefore urge the repeal of the IMA in its entirety.

IV. Breaches of Article 9 ICCPR

Beyond the ECHR, international human rights instruments are also potentially relevant to the assessment of the Bill. In particular, Article 9 ICCPR, which provides inter alia that “[n]o one shall be subjected to arbitrary arrest or detention” (and as reflected in Article 9 of the Universal Declaration of Human Rights), has been applied to immigration-related administrative detention.

The UN Human Rights Council’s Working Group on Arbitrary Detention (the “Working Group”) has explained that “[a]ny form of administrative detention or custody in the context of migration must be applied as an exceptional measure of last resort, for the shortest period and only if justified by a legitimate purpose, such as documenting entry and recording claims or initial verification of identity if in doubt” (Revised Deliberation No. 5; Human Rights Committee, General Comment No. 35 (2014) on liberty and security, paragraph 18). In preserving discretionary powers to detain anyone suspected of entering the UK unlawfully, without any time-limit, the Bill risks conflicting with this baseline guidance.

Moreover, the Working Group has held that the mandatory detention of non-citizens until they are removed, deported or granted a visa, without the possibility of effective judicial review violates Article 9(4) ICCPR and may also constitute discrimination in violation of Articles 2 and 26 thereunder (for example, Case Nos. 42/2017; 28/2017; 7/2019; 35/2020; 42/2020; and 23/2024). Retaining section 12 of the IMA within the Bill potentially entails violations of the ICCPR on analogous bases.

V. Conclusions

The retention of section 12 IMA is incompatible with the requirements of Article 5 ECHR, taken alone and in conjunction with Articles 17 and/or 18. It also conflicts with Article 9 ICCPR, reflected in Article 9 of the Universal Declaration of Human Rights.

Section 12(1)(b) violates Article 5 § 1 (f), in line with which detention pending examination under the first limb of Article 5 § 1 (f) is permitted where its aim is to allow authorities to determine asylum claims quickly and efficiently (Saadi). This will clearly not be the case where examination is not possible “for the time being”.

Section 12(1)(b) violates Article 5 § 1 (f), in line with which detention pending deportation under the second limb of Article 5 § 1 (f) is equally justified only while deportation proceedings are in progress. Where deportation proceedings are not pursued with due diligence, detention under Article 5 § 1 (f) ceases to be permissible (Chahal).

Section 12(1)(b) violates the “quality of law” requirements enshrined in Article 5. In requiring that any deprivation of liberty is applied “in accordance with a procedure prescribed by law”, Article 5 § 1 refers to the “quality of law”, which implies that national law authorising detention must be sufficiently accessible, precise and foreseeable in its application (J.N., § 77). By allowing detention for such period as “in the opinion of the Secretary of State” is reasonably necessary, section 12(1)(b) undermines fundamental standards of legal certainty, since the “opinion of the Secretary of State” is neither foreseeable nor open to legal challenge.

By seeking to exclude migrants from the fundamental guarantees enshrined in Article 5, the UK risks becoming the first Council of Europe State to be found in violation of Article 17, which prohibits the destruction and excessive limitation of ECHR rights. The formulation of section 12 IMA, which the Bill retains, indicates an intent to remove Article 5 rights or restrict them to a far greater extent than is permitted under the ECHR. This raises the possibility of a violation of Article 17 taken in conjunction with Article 5.

By retaining broad powers to detain migrants in circumstances not permitted by Article 5 – namely, where immigration proceedings are not ongoing – the UK risks being found in breach of Article 18 for the first time. This risk is exacerbated by the discretion granted to the Secretary of State in determining the length of detention. The hostile, anti-migrant rhetoric underlying the IMA suggests an ulterior, political motive for detentions. Retention of the IMA’s provisions leaves the UK open to a breach of Article 18 ECHR in conjunction with Article 5 for having restricted the right to liberty in bad faith.

Section 12 conflicts with Article 9 of the ICCPR and the Working Group’s confirmation that immigration detention should be imposed only as an exceptional measure of last resort, for the shortest period and only if justified by a legitimate purpose.

Neither clause 41 on detention nor any other clause in the Bill assuage the significant gaps in compliance with Articles 5, 17 and 18 ECHR and Article 9 ICCPR. To ensure the UK’s compliance with its international obligations to protect against arbitrary detention, we therefore urge the UK Government to repeal the IMA in its entirety.