Immigration Detention Case Study: Indefinite Immigration Detention Does Not Breach Article 5 ECHR

Immigration detention is the administrative process whereby an individual is subject to immigration control and is held whilst they wait for either permission to enter the country, or before they are removed or deported from the country. Extended periods of detention can amount to large costs to the UK tax payer and have detrimental effects on the detainee by causing them serious mental distress. However, the recent decision in Arben Draga v United Kingdom (Application no. 33341/13) found that the system of indefinite detention in the UK was seen to not breach Article 5 of the European Convention of Human Rights (ECHR).

Indefinite Immigration Detention in the UK

The UK is one of the largest users of immigration detention across the whole of Europe. Individuals can either be detained in Immigration Removal Centres, Short-Term Holding Facilities or prisons. Unlike the rest of Europe who, under the EU Returns Directive, only holds migrants in immigration detention for a maximum of 18 months, the UK has no time limit; therefore it is not uncommon for detainees in the UK to be held for years. Rules regarding immigration detention in the UK were initially found in the Immigration Act 1971, and have been amended by subsequent acts. English law does not provide for an automatic judicial review of the lawfulness of detention and therefore the onus is on the detainee to actively challenge the lawfulness of the detention and make a judicial review.

Indefinite detention in the UK has been widely perceived as harsh by many human rights organisations and in some cases it has been argued that indefinite immigration detention is a violation of a person’s fundamental human rights. It could be said that indefinite immigration detention is largely for administrative convenience and therefore does not prioritise the human rights of the detainees.

Background of the Case: Arben Draga v United Kingdom (Application no. 33341/13)

The Applicant is a Kosovan national who entered the UK in 2001 and was granted Indefinite Leave to Remain after his asylum claim was accepted. Since then he has had a number of altercations with the UK Criminal Justice System which includes numerous drug offenses, and consequently was arrested and detained on 2 August 2006 pending his deportation. The Applicant appealed against the detention though it was dismissed in February 2007.

However, after the Applicant sought reconsideration and bail was granted on 30 March 2007, only for him to be detained again in November of that year. After further appeals, the Applicant was eventually granted bail on 30th September 2010 and released on 2nd October 2010 with a condition that he reside at the address provided by the Secretary of State for the Home Department.

The Applicant made complaints to the European Court of Human Rights (ECtHR) that his two episodes in detention were in violation of Article 5 (1)(f) ECHR which is as follows:

(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Judgement of the Case

The Applicant stated that the UK law which legislates immigration detention is not sufficiently precise, accessible and foreseeable in its consequences to meet the standard of lawfulness and, as such, it lacked the quality of law necessary to deprive him of his liberty. This was however not accepted by the ECtHR who said that despite the fixed time limits and the unautomated judicial review, the detention system was still accessible to the detainee, and he was able to challenge the lawfulness of his on-going detention at any given time. Henceforth, indefinite immigration detention in the UK was not found to breach Article 5 ECHR in this particular case.

The decision of the Fourth Section of the European Court of Human Rights can be accessed here: Arben Draga v United Kingdom (33341/13) LEXVISA Immigration Solicitors.

What Does This Case Mean for Immigration Detainees in the UK?

For migrants who are subject to immigration detention in the UK, the case of Arben Draga provides guidance in bringing about a judicial review. Although unsuccessful, the case highlights the importance for detainees in UK immigration detention to challenge the lawfulness of their detention if the length of time in detention is disproportionate. If the SSHD cannot deport the detainee within a reasonable period of time, then the SSHD should cease exercising the power of detention. It is important for individuals who are in UK immigration detention to seek legal representation when making a judicial review claim against any detention that is in breach of their rights under Article 5 ECHR so that it has the best possible chance of success.

Using Legal Representation for a Judicial Review against Indefinite Immigration Detention

Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to make a judicial review against indefinite detention.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application or judicial review succeeds, all necessary documents must be provided. This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.

Successful Judicial Review Claims against Indefinite Immigration Detention

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.

Our offices are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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