Britain’s proud tradition of liberty is a common trope in both academic and political discourse. In 1923, celebrated legal theorist A. V. Dicey argued that ‘in no other country, are people as free from arbitrary power’. Some 90-odd years later, in an article marking the 799th anniversary of the Magna Carta, British Prime Minister David Cameron argued that ‘the values I’m talking about – a belief in freedom, tolerance of others accepting personal and social responsibility, respecting and upholding the rule of law – are the things we should try to live by every day. To me they’re as British as the Union Flag, as football, as fish and chips’. Our protection of personal freedoms is something that we Brits pride ourselves on; it is something that forms part of our conception of what it means to be British; it is something we judge other countries for lacking.
Strict prohibitions against unlawful detention are a central element in any system that celebrates liberty. As William Blackstone, the famous legal historian remarked, ‘[T]he glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the imprisonment of the subject may be lawful’. Prohibitions on unlawful detention significantly precede the formation of the modern British state. First recorded in 1305, the writ of habeas corpus ad subjiciendum enabled a court to require custodians to produce a detained person and explain the reasons for detention so the court could decide if detention was lawful. Later, article 39 of that most British of all documents - the Magna Carta – stated that ‘no freeman shall be taken or imprisoned…except upon the lawful judgement of his peers or the law of the land’.
Further, prohibitions were not confined to English citizens, but applied to all persons on English territory. This principle was tested in the landmark case of James Somerset v Charles Stewart, which saw Judge Lord Mansfield rule against the unlawful imprisonment of the former – a Jamaican slave – by the latter – his British Master. As Blackstone argued, ‘this [British] spirit of liberty is so implanted in our constitution, and rooted in our very soil, that a slave or a Negro, the moment he lands in England falls under the protection of the laws and becomes co instanti a freeman’.
However, the notion that people were protected from arbitrary, unlawful detention in Britain was more often cherished as an ideal than evident in reality. In particular, the tradition of liberty of which Britons are so proud should perhaps be tempered by the numerous episodes where we have tolerated lower levels of freedom for immigrants. For instance, both World Wars saw the mass internment – without trial and without right to habeas corpus - of thousands of people of German descent– including, in the case of the Second World War, many Jewish refugees from Germany.
History has judged those episodes, but has not learnt from them. In particular, contemporary, institutional xenophobia finds its expression in the ever-increasing number of foreign nationals detained in ‘removal centres’ and prisons in Britain. Here, the famed British rule of law is a fantasy. As the series of articles on openDemocracy 50.50’s Unlocking Detention series has explored, the British immigration detention features a number of highly problematic aspects from the perspectives of human rights. These include: the detention of vulnerable groups such as torture victims and asylum seekers, particular under the Detained Fast-Track procedure; serious issues with the bail application process; and the retrenchment of legal aid funding. Further, and unlike most other European countries, detainees in the UK enjoy neither the protections afforded by a statutory time limit to detention, nor the fruits of automatic judicial review processes. As such, migrants can be detained indefinitely without charge or trial.
A new charity - the Habeas Corpus Project - has been created to hold the Secretary of State to account on her use of her power to detain people under the immigration regime. Taking its name from the long-established writ which, as above, allows courts to determine whether a custodian has lawful authority to detain a prisoner, the Habeas Corpus Project aims to fill the gap left by the cuts to legal aid by providing pro-bono representation to immigration detainees who want to challenge their unlawful detention in the High Court. This avenue of redress is currently restricted to those who can afford to risk the legal fees and potential high costs in the event of a loss. The Habeas Corpus Project will assist claimants who would otherwise remain detained and unheard. More broadly, it challenges a regime under which potentially illegal detention decisions routinely go unscrutinised.
The need for Habeas Corpus Project will only intensify in the coming year. The Immigration Act 2014 contains a number of provisions in the area of detention and bail. Some of these will be positive, including changes within the child detention regime. However, the Act also contains a number of problematic provisions from the perspective of detainees’ rights. For instance, the Act introduces a blanket ban if bail applications are made within 28 days of a previous refusal and there has been no material change in circumstances. However, this fails to allow the First-tier Tribunal to rapidly correct its own errors. Further, the decision as to whether there has been a material change in circumstance will be made by the Tribunal. This means the decision as to whether the application can go forward will be made without advocacy from the detainee’s legal representative.
The Act also introduces a requirement that bail applications made within 14 days of a proposed date of removal can only be granted on the consent of the Secretary of State. However, as charity BID has argued ‘as anyone who works with detainees will know, the service of Removal Directions does not inevitably result in removal from the UK, and Removal Directions are often cancelled by the Home Office only to be set again, sometimes repeatedly over several months’. This requirement will therefore cast a net over a far wider group of people than first appears. Finally, the Act radically retrenches the ability of detainees to appeal immigration decisions, first, by allowing the Secretary of State to remove the right to in-country appeals for certain types of deportees, and second, by radically reducing the number of immigration decisions that attract appeal rights to the Tribunal.
What these developments mean is that there will be fewer avenues for detainees to challenge the basis upon which they are being removed and detained. The Immigration Act 2014 pushes migrants even further into the margins of society, and affords them even less protection by the rule of law. As academic Kay Saunders wrote, in reference to internment policies during the two Worlds Wars, ‘Taking a person into custody and then incarcerating him or her without a charge, without a hearing in a court and no right to an open appeal denies all the premises upon which English civil and political culture is embedded’. We are making the same mistake again – although this time, our xenophobia plays out without the nominal excuse of a world war. Today’s immigration detention regime is a stain on our national pride; it is one that we will look back on in shame. In such circumstances, the need for organisations like Habeas Corpus Project is urgent.