Chapter 14 End-of-chapter question guidance

Detention

1. Do the judgments in the case of Saadi recognize the right in Article 14 UDHR to claim asylum?

A comparison of the High Court judgment in Saadi and the House of Lords highlights the issues very clearly. The judgment of the ECtHR should be read in full, including the submissions of the organisations which intervened, and the dissenting judgments.

 

2. Is it appropriate that the decision to detain should be a discretionary one without statutory criteria to guide its exercise?

A. You might ask, ‘appropriate to what?’ Presumably the gravity of the matter and the prima facie infringement of a right that is involved.

B. The assumption behind the question is that statutory criteria are superior to discretionary ones. In what respects is this the case?

C. Explain what are the current criteria and how they are arrived at.

D. What kind of accountability is there in the exercise of these criteria?

E. Conclude with an evaluation, noting how it would be different if criteria were statutory and whether this is achievable.

 

3.  Has the provision of an ‘automatic’ bail hearing in the Immigration Act 2016 improved the position for immigration detainees?

A. Note there was a provision for this in the Immigration and Asylum Act 1999 which was never implemented and is now repealed. Reading the Parliamentary debates about these developments might reveal some of the reasoning behind them. Look at the Immigration Act 2016 and the new provisions on Immigration bail. It might be useful to look at ILPA’s briefing papers on the new bail provisions. These are freely available on the web and include excerpts from the Parliamentary debates on this. Note that bail has replaced temporary admission and the grounds for detention are very broad.

B. It would be helpful to clarify the scope of the immigration detainees under discussion here. Identify the legal stages at which ‘asylum seekers’ and others can be detained.

C. Consider the reasons that criminal suspects have automatic bail hearings. Do these apply to asylum seekers or other immigration detainees?

D. What, if any are the material differences?

E. Do these differences indicate that a lesser scrutiny of detention is warranted?