Why the Human Rights Court Decision Doesn't Change the Rules on Indefinite Detention - RightsInfo

Why the Human Rights Court Decision Doesn’t Change the Rules on Indefinite Detention

The British Government has the right to hold asylum seekers in indefinite detention but it also has a duty to protect. In a recent case at the Human Rights Court, judges have confirmed what that means in practice.

The Background

In May last year, the Human Rights Court upheld the UK’s right to hold asylum seekers in indefinite detention in a case brought by a man who arrived in the UK seeking asylum from Iran. He was detained from March 2005 to December 2007 and January 2008 to 14 September 2009, however, judges said that doing so did not contradict anything in the Human Rights Convention.

This said, the Court did add that the lack of a fixed time limit did not mean that the Government could sit on its hands when dealing with asylum seekers’ applications to be released. All applications should be dealt with using “due diligence” and all decisions should be made without unnecessary delay.

What happened in this case?

Image Credit: Hernan Pinera / Flickr

A Zimbabwe born man (known only as S.M.M. in the court proceedings) moved to the UK on a temporary visa which he outstayed. S.M.M was very vulnerable – he had been attacked and tortured for supporting gay rights in Zimbabwe, he suffered from severe mental illness, including PTSD, and he led an unstable life, culminating in a 3 year prison sentence.

S.M.M. was served with a deportation notice and, from 2008, he was held in immigration detention pending the determination of his claim for asylum. Court proceedings associated with his asylum claim were dogged by delays which, it appears, were caused in part by S.M.M’s failure to pursue them properly. It was not until 2011 that S.M.M was released from asylum detention. He had been detained for nearly 3 years. The Court decided that his human right to liberty had been violated.

So what’s new?

Image: tpxdave / Pixabay

In fact, the Human Rights Court was at pains to assert that it was doing nothing new. It was simply reasserting that the Government must act in accordance with its own laws and guidelines to protect the vulnerable from any abuse of their human rights.

It recalled Magna Carta in asserting the fundamental importance of our ancient right to liberty and noted that the onus is on the State to ensure that no-one is detained for longer than necessary. The Court said that the Government’s duty is to ensure that the “due diligence” safeguard is implemented.

It clarified that means that it is not enough for the Government to simply be responsive to asylum claims whilst keeping applicants in detention. It must pro-actively ensure that no-one is deprived of their liberty for longer than necessary, even if this is caused by their own failure to manage their cases properly.

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About the Author

Libby Attwood

Associate Editor
Libby is a solicitor who specialised in commercial litigation for more than ten years. On leaving private practice, she obtained an LLM in Human Rights and now combines motherhood with pro-bono work for legal advice centres and voluntary work for human rights organisations View all posts by Libby Attwood.
Why the Human Rights Court Decision Doesn’t Change the Rules on Indefinite Detention
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