The Habeas Corpus Project
Posted by Emma Ginn
The Habeas Corpus Project is a new joint initiative with Bail for Immigration Detainees. The project will be working with detainees who have been detained for more than one year.
The project has effectively been launched by the release of three Algerians ;
Guardian : "Judge frees three Algerians from detention limbo" - 22/01/08
Background:
The Habeas Corpus Project (HCP) was set up in July 2007 by Alex Goodman (photo left), a barrister from 4-5 Gray's Inn Square. Its purpose is to challenge the lawfulness of long-term immigration detention through making applications for habeas corpus in the High Court. The project is currently in its pilot phase, expected to last approximately six months. The HCP currently consists of an informal group of barristers and solicitors interested in taking on such work. The administrative side is currently ‘hosted’ by BID but the project is intended to develop its own distinct identity. During the pilot phase, referrals are being sought solely from existing BID cases due to the small number needed, but may in time be sought from other organisations such as Medical Justice or visitor groups. During the pilot phase the HCP is focusing solely on cases involving detention of twelve months or more.
The Issue
At any one time almost 3000 people are held in immigration detention centres, most of them awaiting removal or deportation to their country of origin after their asylum claims have been determined. Many people held in detention cannot be removed for administrative reasons (such as their embassies being unwilling to provide travel documents) The result is that a significant number of people have been held in detention in excess of six months, and in some cases in excess of two years. Many are suffering physically and mentally from the stress and fear induced by indefinite detention. Many of those in detention have suffered traumatic experiences in the past and find detention particularly difficult to cope with. The fundamental rights of many people are being abused. One only has to consider the anxiousness with which Parliament agreed to extend the detention without charge of terror suspects from 7 days to 28 days, to question how it is that many people who have committed no crime find that their right to liberty is so egregiously infringed in this country.
The High Court has consistently held that the Secretary of State’s powers of administrative detention are impliedly limited at common law and by article 5 of the European Convention for the Protection of Fundamental Rights and Freedoms to cases where it is absolutely necessary to do so, and then for the shortest period necessary, and solely for the purpose of removing them. However, the reality is that many detainees are detained indefinitely and the Secretary of State will rarely release long term detainees unless compelled to do so by the Courts. To compound the problem, it has been acknowledged by the High Court that the Secretary of State frequently misrepresents the case against applicants for bail in the AIT, often asserting that the delays in removing a person are due to their “non-cooperation”. It frequently transpires that they have never even been interviewed in connection with obtaining travel documents. The right to apply for bail in the Asylum and Immigration Tribunal is an ineffective alternative remedy. The AIT has no jurisdiction to rule on the lawfulness of detention, and many Immigration Judges lack the legal expertise to recognise when there are legal arguments in favour of release. Often the sole question they will ask themselves is whether the applicant may abscond. Yet the Courts have stressed that the likelihood of absconding, if proven should not be over-emphasised .
In practical terms, the only effective remedy open to many detainees is to make an application for their release to the High Court. People in the situations set out above should be entitled to habeas corpus or to a mandatory order from the High Court for their release, but the reality is that there are few firms of solicitors who have the expertise necessary to make such applications. The practical shortage of adequate legal representation is what The Habeas Corpus Project seeks to remedy.
How will The Habeas Corpus Project operate ?
The intention is that The Habeas Corpus Project will operate for an initial period of up to six months on an ad hoc basis and learn from the cases it takes on. Bail for Immigration Detainees and Medical Justice are two organisations working with detainees who are able to identify those who have been held in long term detention. Initially, the project will target those who have been detained longer than 12 months. After suitable cases have been identified by those organisations, a referral will be made to a firm of solicitors who have agreed to participate in the project. That firm may take on the case pro bono, on a conditional fee agreement or with legal aid. It is envisaged that the majority of initial cases should be eligible for legal aid because (a) those detained in excess of 12 months will, on the case law, usually have a reasonable prospect of succeeding and (b) even where the prospects are balanced, the matter concerns their fundamental rights and would therefore meet the conditions established in the Funding Code used by the Legal Services Commission. Damages may be awarded in a number of cases.
A small pool of barristers and solicitors has been established and the project’s first cases are under way. The prospects for the project have been dampened by the recent decision of the Court of Appeal in the case of A in which it was found that a Somalian man detained was lawfully detained for four years after the expiry of his sentence for raping a child. The Home Office have started to employ that case as justification for long term detention of many far less extreme cases. Part of the work of Habeas Corpus Project will be to explore whether the Court of Appeal’s judgment really does entitle the Home Secretary to detain people indefinitely without trial, as she appears to believe it does.
The intention in the longer term is to establish the project more firmly with its own administrative staff, and ultimately with its own solicitor with the power to instruct counsel on High Court applications.
The Issue
At any one time almost 3000 people are held in immigration detention centres, most of them awaiting removal or deportation to their country of origin after their asylum claims have been determined. Many people held in detention cannot be removed for administrative reasons (such as their embassies being unwilling to provide travel documents) The result is that a significant number of people have been held in detention in excess of six months, and in some cases in excess of two years. Many are suffering physically and mentally from the stress and fear induced by indefinite detention. Many of those in detention have suffered traumatic experiences in the past and find detention particularly difficult to cope with. The fundamental rights of many people are being abused. One only has to consider the anxiousness with which Parliament agreed to extend the detention without charge of terror suspects from 7 days to 28 days, to question how it is that many people who have committed no crime find that their right to liberty is so egregiously infringed in this country.
The High Court has consistently held that the Secretary of State’s powers of administrative detention are impliedly limited at common law and by article 5 of the European Convention for the Protection of Fundamental Rights and Freedoms to cases where it is absolutely necessary to do so, and then for the shortest period necessary, and solely for the purpose of removing them. However, the reality is that many detainees are detained indefinitely and the Secretary of State will rarely release long term detainees unless compelled to do so by the Courts. To compound the problem, it has been acknowledged by the High Court that the Secretary of State frequently misrepresents the case against applicants for bail in the AIT, often asserting that the delays in removing a person are due to their “non-cooperation”. It frequently transpires that they have never even been interviewed in connection with obtaining travel documents. The right to apply for bail in the Asylum and Immigration Tribunal is an ineffective alternative remedy. The AIT has no jurisdiction to rule on the lawfulness of detention, and many Immigration Judges lack the legal expertise to recognise when there are legal arguments in favour of release. Often the sole question they will ask themselves is whether the applicant may abscond. Yet the Courts have stressed that the likelihood of absconding, if proven should not be over-emphasised .
In practical terms, the only effective remedy open to many detainees is to make an application for their release to the High Court. People in the situations set out above should be entitled to habeas corpus or to a mandatory order from the High Court for their release, but the reality is that there are few firms of solicitors who have the expertise necessary to make such applications. The practical shortage of adequate legal representation is what The Habeas Corpus Project seeks to remedy.
How will The Habeas Corpus Project operate ?
The intention is that The Habeas Corpus Project will operate for an initial period of up to six months on an ad hoc basis and learn from the cases it takes on. Bail for Immigration Detainees and Medical Justice are two organisations working with detainees who are able to identify those who have been held in long term detention. Initially, the project will target those who have been detained longer than 12 months. After suitable cases have been identified by those organisations, a referral will be made to a firm of solicitors who have agreed to participate in the project. That firm may take on the case pro bono, on a conditional fee agreement or with legal aid. It is envisaged that the majority of initial cases should be eligible for legal aid because (a) those detained in excess of 12 months will, on the case law, usually have a reasonable prospect of succeeding and (b) even where the prospects are balanced, the matter concerns their fundamental rights and would therefore meet the conditions established in the Funding Code used by the Legal Services Commission. Damages may be awarded in a number of cases.
A small pool of barristers and solicitors has been established and the project’s first cases are under way. The prospects for the project have been dampened by the recent decision of the Court of Appeal in the case of A in which it was found that a Somalian man detained was lawfully detained for four years after the expiry of his sentence for raping a child. The Home Office have started to employ that case as justification for long term detention of many far less extreme cases. Part of the work of Habeas Corpus Project will be to explore whether the Court of Appeal’s judgment really does entitle the Home Secretary to detain people indefinitely without trial, as she appears to believe it does.
The intention in the longer term is to establish the project more firmly with its own administrative staff, and ultimately with its own solicitor with the power to instruct counsel on High Court applications.
The progress of a case:
referral to HCP → consideration by HCP → possible referral by HCP to solicitors
When a referral from BID caseworkers (or other individuals/organisations) is received by the HCP a decision will be taken on whether or not that case is suitable for the project.
It is intended that bail applications continue to be made whilst a High Court application is pending. In some cases it may be possible for BID to do this, but due to BID’s very limited resources it is hoped that solicitors will take over this aspect of each case wherever possible.
Other aspects of the project, and its future:
Apart from taking the legal cases forward the HCP intends to develop a number of other tactics in keeping with its purpose. These may include:
referral to HCP → consideration by HCP → possible referral by HCP to solicitors
When a referral from BID caseworkers (or other individuals/organisations) is received by the HCP a decision will be taken on whether or not that case is suitable for the project.
It is intended that bail applications continue to be made whilst a High Court application is pending. In some cases it may be possible for BID to do this, but due to BID’s very limited resources it is hoped that solicitors will take over this aspect of each case wherever possible.
Other aspects of the project, and its future:
Apart from taking the legal cases forward the HCP intends to develop a number of other tactics in keeping with its purpose. These may include:
- Developing ‘DIY’ habeas corpus packs, similar to the BID Notebook on Bail “How to Get Out of Detention” which is present in all detention centre libraries;
- Media attention;
- Developing a mini library for future reference, through recording the detail and progress of all referred cases and collating them along with relevant policy statutes and policy documents.
Expansion of the project will be considered once the results of the pilot are known.
Please email any enquiries to the Habeas Corpus admin email address (staffed one day a week by a volunteer) This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Bail for Immigration Detainees
Last Updated on Monday, 04 February 2008 23:59