The administrative detention of non-nationals pursuant to immigration control: International and constitutional law perspectives

International and Comparative Law Quarterly

Volumn 53, Issue 4, 2004, Pages 897-934

  Wilsher, Daniel ^a  

^a CITY UNIVERSITY   (United Kingdom)

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EID: 34248060562     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/53.4.897     Document Type: Article

References (111)

1. Recommendations as Regards Harmonisation of Reception Standards for Asylum Seekers in the EU. Part A: Summary of State Practice (Geneva. UNHCR. July 2000) 31.
2. See for a modem review RJ Sharpe The Law of Habeas Corpus (Oxford Clarendon Press 1989).
3. The European Court of Human Rights, for example, has held that where the deportation order itself is illegal because it violates national or Convention law, detention pending execution of that order is however not a breach of the right to liberty (See Chahal v United Kingdom (1997) 23 EHRR 413).
4. See the opinion of Scalia J at n 63 below and the Australian Migration Act 1958.
5. See R Jennings and A Watts Oppenheim's International Law (9th edn Longman 1992), 897–8 and 941
6. Attorney-General for the Dominion of Canada v Cain [1906] AC 542, at 546 where Lord Atkinson stated: “One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order and good government, or to its social or material interests: Vattlel. Law of Nationals, book 1, S 231; book 2, s 125.”
7. See also Chahal v UK (1996) 1 BHRC 405, at 422.
8. See G Goodwin-Gill ‘The Limits of the Power of Expulsion in Public International Law’ (1974–1975) 47 BY1L 55–156
9. International Law and the Movement of Persons between States (Oxford OUP 1978).
10. Goodwin-Gill, International Law and the Movement of Persons between States
11. Oppenheim, International Law and the Movement of Persons between States at 941: ‘[W]hile a state has broad discretion in exercising its right to expel aliens, its discretion is not absolute. Thus, by customary international law it must not abuse its right by acting arbitrarily in taking its decisions to expel an alien, and it must act reasonably in the manner in which it effects an expulsion.’
12. See for a general discussion, I Brownlie Principles of Public International Law (Oxford OUP 1998).
13. Oppenheim above n 5 at 945.
14. See Principles of Public International Law at 945.
15. The right to vote is clearly a norm which is reserved for citizens (see Art 25 ICCPR).
16. See the discussion of the travaux preparatoires in MJ Bossuyt Guide to the ‘Travaux Preparatories’ of the International Covenant on Civil and Political Rights (Dordrecht Martinus Nijhoff Publishers 1987) at 172 where they understood arbitrary detention to include injustice, unpredictability, unreasonableness, capriciousness, and unproportionality.
17. See eg decision in Jalloh v Netherlands, Communication No 794/1998 of 15 Apr 2002 (CCPR/C/74/D/794/1998) where the Committee ruled that detention for 3.5 months pending deportation was not unreasonable given the accepted absconding risk.
18. This is the approach taken by the UN Economic and Social Council Working Group on Arbitrary Detention in their Deliberation No 5 (E/CN.4/2000/4., 28 Dec 1999) which stipulates that the maximum period of detention should be set by law and may not be excessive.
19. See also UNHCR Executive Committee Conclusion No 44 (1986) which opines that detention should be avoided but may be justified, inter alia, in order to ‘determine the elements on which the claim to refugee status. is based’ and should not be ‘unduly prolonged’.
20. (1996) 22 EHRR 533.
21. See Guzzardi v italy (1980) 3 EHRR 333
22. Engel v Netherlands (1976) 1 EHRR 647 in which the Court distinguished between a deprivation of liberty and a mere restriction on liberty which is now regulated by Art 2 Protocol No 4.
23. Amuur, at para 43.
24. See Secretary of State for the Home Department ex parte Saadi and Others [2002] UKHL 41 where detention in a military barracks which allowed movement within it but not beyond it was held to be caught by An 5(1).
25. (1997) 23 EHRR 137.
26. See Winterwerp v Netherlands (1979–1980) 2 EHRR 387.
27. See Wittold litwa v poland (2001) 33 EHRR 1267.
28. The United Kingdom House of Lords has in fact ruled that proportionality does apply to Art 5(l)(f) in a limited form. See Secretary of State for the Home Department ex parte Saadi and Others [2002] UKHL 41.
29. The Strasbourg Court has reaffirmed its traditional stanch, see App 51564/99, Conka v Belgium, 5 Feb 2002.
30. At para 113. 34 See eg Aires v Ireland (1979) 2 EHRR 305.
31. See C Overy and RCA White European Convention on Human Rights (Oxford OUP 2002) at 130.
32. Quinn v France (1995) 21 EHRR 529.
33. Kolompar v Belgium (1993) 16 EHRR 197.
34. Soering v United Kingdom (1989) 11 EHRR 439 at para 89. There is however some divergence amongst academics on the question of whether proportionality has a role to play throughout the Convention or whether it is largely confined to Arts 8–11. See n 32 at 5 where only qualified rights are said to give rise to questions of proportionality.
35. By contrast see K Starmer European Human Rights Law (Legal Action Group 1999) at 169, who states that ‘the principle of proportionality is the defining characteristic of the Strasbourg approach to the protection of human rights’.
36. Australia did not seek to derogate from Art 9 ICCPR.
37. See, eg, Ireland v United Kingdom (1979–1980) 2 EHRR 25.
38. Lawless v Ireland (1979–1980) 1 EHRR 1 at para 28.
39. Ireland v United Kingdom (1979–1980) 2 EHRR 25.
40. See the discussion in M Novak United Nations Covenant on Civil and Political Rights: CCPR Commentary (Kehl XP Engel 1993) at 79.
41. See also Siracusa Principles on Limitation and Derogation provisions in the ICCPR. E/CN.4/1985/4.
42. See Aksoy v turkey (1996) 23 EHRR 553.
43. [2003] 1 All ER 816.
44. Arts 41 and 42 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949).
45. Arts 9, 32, and 33 Convention Relating to the Status of Refugees (1951)
46. Art 4 International Covenant on Civil and Political Rights
47. (1996) 23 EHRR 364.
48. See eg Geneva Convention Relative to the Protection of Civilian Persons in time of War (1949) Art 42.
49. In the absence of incorporation treaties may still have some legal effect in public law. In Australia for example there is authority holding that executive ratification of treaties may create a legitimate expectation in certain circumstances. Minister of State for Immigration s v Teoh (1995) 128 ALR 353 (High Ct).
50. This has been endorsed by the recent decision in Minister for Immigration and Multicultural Affairs ex parte Lam [2003] HCA 6 (12 Feb 2003).
51. Chae Chan Ping v United States 130 US 581 (1889).
52. See Nishimura Ekiu v United States 142 US 651 (1892) which held that the rules laid down by Congress are due process of law.
53. See the excellent discussion in ‘The Constitutional Foundations of Immigration Law’ ch 9 United States Immigration Law (Maththew Bender and Co 1997).
54. See Yick Wo v Hopkins 118 US 356 in which a ban on Chinese laundries was overturned under the Fourteenth Amendment.
55. The classes of inadmissible and criminal aliens are in fact very wide and membership does not require any particularly heinous conduct. Thus ordinary visa violators are covered. See 8 USC 1182.
56. See Breyer J, at III A para 4.
57. See the discussion at IE. This means that where a statute raises a ‘serious doubt’ as to its constitutionality this Court will first ascertain whether a construction of the statute is fairly possible by the question may be avoided’ (Crowell v Benson 285 US 22, 62).
58. US.
59. III A para 2. Citing United States v Salerno 481 US 739 (allowing pre-trial detention only for the most serious crimes and subject to stringent time limits)
60. Foucha v Louisiana 504 US 71 (striking down insanity-related detention that placed the burden on the detainee to prove non-dangerousness).
61. United Nations Working Group on Arbitrary Detention, UN Doc E/CN.4/2000/4 (28 Dec 1999)
62. United Nations High Commissioner for Refugees, Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (10 Feb 1999).
63. Lynch v Cannatella, 810 F 2d 1363 (1987).
64. (8 USC 1225 (b)(2)(A)) In the case of asylum seekers who are otherwise inadmissible, detention is mandatory pending their establishment of a ‘credible fear’ of persecution (8 USC 1225 (b)(l)(B)(TV).
65. See the earlier litigation conducted on behalf of immigrants detained at Guantanamo Bay in Cuban American Bar Association, Inc v Christopher, 43 F 3d 1412 (11th Cir 1995).
66. The recent Supreme Court decision on the status of detainees at Guantanamo Bay did not consider the decision in Mezei. See Rasul v Bush 321 F 3d 1134. The implication may be that prolonged detention does merit a procedurally fair hearing.
67. Barrera-Echavarria v Rison, 44 F 3d 1441 (9th Cir. 1995) (en banc) holding that indefinite detention of excludable Cubans was constitutional.
68. Fernandez v Wilkinson 505 F Supp 787 (1980).
69. United States Court of Appeals (Sixth Circuit) decision in Rosales-Garcia v Holland, No 99–5683 (2003).
70. Fernandez-Roque v Smith 567 F Supp 1115 (1983).
71. Fernandez-Roque v Smith 734 F 2d 576 (1984). The Court rejected the distinction between formal entry and parole, holding that the latter was part of the admissions process itself and thus could not be isolated as a discrete issue justifying constitutional protection.
72. See Immigration Act 1971.
73. See Crime, Anti-Terrorism and Security Act 2001
74. Nationality, Immigration and Asylum Act 2002.
75. See FAR Benion Statutory Interpretation (3rd edn London Butterworths 1997) at 645–648.
76. Liversidge v Anderson [1942] AC 206
77. is viewed as an aberration and was criticized in the later House of Lords decision in Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765.
78. Khawja at 790.
79. All ER at 782.
80. Immigration Service Instructions to Staff on Detention in the Operation Enforcement Manual, 21 Dec 2000. See also Guidance Notes for Adjudicators from the Chief Adjudicator. (Revised Jan 2002) (Immigration Appellate Authority).
81. [1984] WLR 704.
82. [1997] AC 97.
83. Interestingly the United Kingdom has recently given implicit legislative recognition to the principles. See s 67 Nationality, Immigration and Asylum Act 2002, which implicitly acknowledges that detention may not continue where the principles are not satisfied.
84. See Benion, above n 85 at 892–893.
85. Grice v Dudley Corpn [1958] ch 329.
86. R v Secretary of State for the Home Department ex parte Pierson [1998] AC 539
87. R v Secretary of State for the Home Department ex parte Simms and Another [1999] 3 WLR 328.
88. Regarding the presumption favouring liberty. Lord Brown-Wilkinson (at 268b) said ‘[s]uch an approach is equally applicable to everyone within the jurisdiction of the court, whether or not he is a citizen of the country (see [1983] 1 All ER 765 at 782 … per Lord Scarman).’
89. R v Secretary of State for the Home Department ex parte I [2002] EWCA Civ 888.
90. EWCA Civ at para 54.
91. Para 16(1) Schedule 2 Immigration Act 1971.
92. Lord Slynn of Hadley at para 22.
93. There have been a long series of amending acts to the Migration Act 1958.
94. See the Attorney-General's notes to the 1958 Act.
95. Division 6, Reason for division. For further explanation of Parliament's rationale see Asylum, Border Control and Detention, Report by the Joint Standing Committee on Migration (Parliament of the Commonwealth of Australia, Feb 1994)
96. [1992] 176 CLR 1 FC 92/051.
97. Per Brennan. Deane and Dawson JJ, at paras 22–5 citing Blackstone Commentaries (17th edn London 1830), Bk 1, paras 136–7
98. Dicey Introduction to the Study of the Law of the Constitution (10th edn Loudon Macmillan 1959) at 202.
99. the Law of the Constitution at para 32.
100. the Law of the Constitution at para 34: “In the context of that power of a designated person to bring his or her detention in custody under Div. 4B to an end at any time, the time limitations imposed by other provisions of the Division suffice, in our view, to preclude a conclusion that the power of detention which are conferred upon the Executive exceed what is reasonably capable of being seen as necessary the for purposes of deportation or for the making and consideration an entry application’
101. New South Wales Registry N726 of 2002, judgment of 9 Dec 2002 Black CJ, Sundberg and Weinberg JJ.
102. See s 253 Migration Act 1953 which gives factors justifying detention in the event of a deportation order.
103. See Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 20 (24 Jan 2003)
104. SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 (30 Jan 2003)
105. WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 (23 Dec 2002).
106. Al Mash v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009 (15 Aug 2002).
107. IMM-3730–94,19 Oct 1994.
108. For a case analysing the proper test to apply in public safety cases see Salilar v Minister of Citizenship and Immigration IMM-1429–95 (decision of 30 June 1995) in which the Federal Court (MacKay J) ruled that adjudicators must establish that there is a probability’ of danger to the public and not merely a possibility’.
109. See VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 (S Oct 2002 where release was ordered when a detainee arguably fell outside the detention power).
110. See the discussion set in the United Kingdom Court of Appeal case A v Secretary of State for the Home Department [2003] 1 A11 ER at 849–53 (per Brooke LJ).
111. See Goodwin-Gill above n 6. See, eg, the case-law of the European Court of Justice in relation to Article 39(3) of the EC Treaty. Case C-67/74 Bonsignore [1975] ECR 297.