National Security and Immigration Detention in Modern Times

1. National Security and Immigration Detention in Modern Times A Changing Paradigm

2. Detention and National Security – Three Models? • Criminal Law Model – arrest, prosecution and conviction/release. Due process subject to some modification to protect security. • Law of War Model – Geneva Conventions, declared war, capture of POWs - trial for war crimes, non-POWs – criminal trials. Repatriation at war end if not convicted. (see also Refugee and Stateless persons Conventions on emergency measures) • Immigration Law Model – detention on national security grounds pending deportation. Habeas corpus, judicial review and bail. Detention ends in removal.

3. The Paradox of Preventive Immigration Detention? • Rationale for immigration detention – ancillary and to secure immigration control • Preventive detention – not immigration control although deportation may be security-based • Overlap – likely criminal will also be absconder? • Discrete relevance of security issues – • length of detention • refusal of bail/discretionary release • and non-criminal cases to silence legal political action

4. Conceptual Problems • Cf Black J in Carlsden v Langdon • Why use immigration powers? Security situation deserves criminal powers and safeguards. • Answer – (a) deportable status means no right to same safeguards • (b) and largely unfettered powers of legislature/executive over migration (cf Art 3 ECHR) • Discrimination to detain only immigrants? • Again close link to deportable status used to support executive detention of aliens only.

5. Detention under Chahal • Chahal (1996) ruled that Art 3 absolute but no breach of Art 5(1) to detain for six years pending legal challenges in UK and ECHR. Why? • Complexity of case and also national security context. • Breach of Art 5(4) as national courts could not assess the facts said to form basis for detention. • UK released Chahal immediately afterwards but not clear that this was required by Chahal judgment. • Note dissenting judges criticised failure to seek third country to send Chahal to instead of detain • UK domestic case-law required detention to be pending deportation within a ‘reasonable period’

6. Post 11 September 2001 • UK had already identified resident aliens whom it saw as national security risks but concluded could not deport to own countries due to Article 3 ECHR. • Also intelligence on many UK citizens linked to training in Afghanistan • Risk level assessed as increased post 9/11 • Govt decided that deportation and detention of aliens was required but needed legal solution • Derogation from Article 5 (and Art 9 ICCPR) suggested to get round either (a) rule that deportation must be genuinely on foot under Article 5(1)(f) and/or (b) due diligence rule • No derogation from Article 14 ECHR

7. Anti-terrorism, Crime and Secuirty Act 2001 (‘ACSA’) – the Bill • To ‘allow the detention of those the Secretary of State has certified as threats to national security and who are suspected of being international terrorists where their removal is not possible at the present time.’ (explanatory notes to Bill) • ‘we note that…the Bill does not in itself make clear that the purpose of detaining the suspect is solely to find a safe country to which to remove him or her. A suspect might be very willing to go to a country which supports, or at any rate, does not oppose terrorism.’ (Jt Committee on Human Rights) • If government not prepared to allow them to leave then: • ‘the proposed arrangements look more like a form of indefinite internment than detention pending removal. This would make it more likely that the detention would be held to violate Article 5(1)(f).’

8. Discussions on ACSA Bill • ‘If a country is prepared to take someone, then we would release them under these particular powers, because we are talking about immigration powers here…. ‘ (Home Secretary) • ‘We are concerned that this might lead to discrimination in the enjoyment of the right to liberty on the ground of nationality. If that could not be shown to have an objective, rational and proportionate justification, it might lead to actions which would be incompatible with Article 5 of the ECHR either taken alone or in combination with …Article 14’ (Jt Committee on Human Rights) • No clear Strasbourg case and uncertain conclusions from expert bodies (inc Council of Europe HR Commissioner) allowed action to proceed

9. The Act and the Detentions • s23 ‘a suspected international terrorist may be detained…despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by- • (a) a point of law which wholly or partly relates to an international agreement, or • (b) a practical consideration.’ • First 12 aliens were served with deportation and detention orders in December 2001 • Right to judicial review but court could only overturn if ‘no reasonable grounds for a belief or suspicion’ – a low burden for the executive to meet. Also restrictions on access to intelligence information for detainees.

10. Litigation and further debate • Special Immigration Appeals Commission (‘SIAC’) heard attack on the compatibility with ECHR as general matter (2002) • Held: discriminatory in breach of Art 14 because UK citizens also a threat. Proper comparator was with citizens also suspected not with other deportable alien groups. • Court of Appeal overturned this (2002). Lord Woolf: • ‘I say those comparators were not in an analogous situation because the nationals have a right of abode in this jurisdiction but the aliens only have a right not to be removed.’

11. Litigation and debate • Brooke LJ – ‘both customary international law and the international treaties by which this country is bound expressly reserve the power of a state in time of war or similar public emergency to detain aliens on grounds of national security when it would not necessarily detain its own nationals on those grounds.’ (Refugees, Stateless) • The Joint Committee accepted this and noted that • ‘If the person voluntarily agrees to be deported to a specified country, he or she must be released and removed to that place… the Secretary of State has an implied duty to search diligently for a place to which the person could be safely and practicably removed, and detain the person only as long as necessary to find a safe place and make arrangement for removal.’

12. House of Lords decision (2004) • A Security not Immigration Measure • Lord Hope of Craighead made it plain that: • ‘…it would be a serious error, in my opinion, to regard this case as about the right to control immigration. This is because the issue which the Derogation Order was designed to address was not at its heart an immigration issue at all. It was an issue about the aliens’ right to liberty.’ • Lord Bingham noted Article 5(1)(f) detention and said ‘that is a position in which a national could never find himself. The question is whether and to what extent states may differentiate outside the immigration context.’

13. A Universal Right to Liberty without Discrimination? Recent International HR Material ‘these materials are inimical to the submission that a state may lawfully discriminate against foreign nationals by detaining them but not nationals presenting the same threat in a time of emergency’ (Lord Bingham reviewing recent UN guidelines and standards on human rights and anti-terrorism) Rejects Brooke’s arguments by saying the relevant treaties are the ECHR and ICCPR not any other such as Geneva, Refugee or Stateless or Customary international law

14. Other arguments • Three-walled Prison • Govt argued that UK nationals had no where else to go, whilst aliens had a missing wall of their prison cell. Therefore not in the same position. Rejected by 8-1 as not reflecting practical reality. • Indefinite Executive Detention • Common law and habeas corpus tradition reasserted • Fundamentally wrong to detain without trial regardless of nationality or immigration status

15. Consequences of the Decision • Legal effects: • Declaration of incompatibility with ECHR rather than invaliding legislation • Unclear how far dependent on factual situation in UK – the accepted risk from UK nationals making the discrimination clear. Arguable that this was not crucial. • Political effects: • Government time to reconsider and passed non-discriminatory measures relating to control orders (house arrest) • Also extended detention pre-charge to 28 days • Prosecutions of persons suspected began to occur – move to criminal model (cf 2005 attacks by UK citizens)

16. United States post-9/11 • Immediate use by INS of immigration violations to detain 1000-1500 persons picked up during PENTTBOM investigation • Denial of bail and appeal judicial bail grant • Detention even if voluntary departure possible and beyond 90-day removal period • FBI clearance needed for all deportations/release • Many held for 1 year under harsh conditions. Longest 6 years during prolonged proceedings before being sent to Canada

17. Investigation of INS Practices • Heavily criticised by D o J enquiry as not based upon evidence. No detainees charged it would appear. • Doubts about legality of holding under immigration powers for criminal investigation • Damages actions are ongoing but so far not successful as judge approved ulterior motive • Subsequently passage of sec402 USA Patriot Act authorizing indefinite detention of suspected terrorists based on SS certificate

18. Relevance of Guantanamo Bay • First used for immigration detainees in 1990s • No judicial review possible as not US territory and no extra-territorial effects of US law or constitution • Long tradition in US of holding that unadmitted aliens have few rights although habeas corpus was available where held at US border • Supreme Court case-law on ‘unlawful combatants’ at Guantanamo revisits some of these ideas. So far, habeas corpus extended to the base and statutory rights to due process. • Congress has now passed legislation to cover their cases and we will have to see further litigation • Repatriation delays - will begin to look like imm detention

19. Conclusions • The UK tried to use the immigration model – rejected because the lack of prospects for removal transformed the detention into a security measure. • The liberty rights of aliens were held to be equal in such cases. • Profound decision if generalized to all situations outside declared war • US has used immigration model but without accepting that detainees could not be removed • No constitutional problem found so far • Guantanamo presents a fourth model (‘unlawful combatants’) but raises many similar issues