Source · Select Committees · Human Rights (Joint Committee)
Recommendation 101
101
Rejected
Academics Dr Sabina Garahan and Dr Matthew Gillet argue, “by allowing detention for such period...
Conclusion
Academics Dr Sabina Garahan and Dr Matthew Gillet argue, “by allowing detention for such period as ‘in the opinion of the Secretary of State’ is reasonably necessary, section 12(1)(b) conflicts with fundamental standards 133 Explanatory notes, para.44 134 There is a time limit of 24 hours for detaining unaccompanied children in a short- term holding facility (Immigration Act 1971, Schedule 2, paragraph 18B inserted by the Immigration Act 2014). There is a 72-hour time-limit or not more than seven days where a longer period of detention of a is authorised personally by a Minister of the Crown, of pregnant women (Immigration Act 2016, s 60) and of accompanied children and their families in pre-departure accommodation (Immigration Act 2014, s 6). 135 JCHR, Legislative Scrutiny: Illegal Migration Bill 12th Report of 2022–2023, paras 194–202 136 Professor Sarah Singer, Q6 38 of legal certainty, since the “opinion of the Secretary of State” is neither foreseeable nor open to legal challenge.” It would, of course, be open to challenge on public law grounds, such as irrationality.
Government Response Summary
The government clarifies that Section 12 of the IMA is in force and provides a clear legislative framework for detention decisions, asserting that while the Home Secretary determines reasonable detention periods, judicial oversight is maintained and the discretion is compliant with Article 5 ECHR.
Government Response
Rejected
HM Government
Rejected
Section 12 of the Illegal Migration Act 2023 (IMA 2023) is already in force and provides a clear legislative framework for operational detention decisions to be made. Section 12 of the IMA 2023 placed two of the common law Hardial Singh principles on a statutory footing. It established that it is for the Home Secretary, rather than the courts, to determine what is a reasonable period to detain an individual for the specific statutory purpose (for example, to effect removal from the UK). However, this does not prevent thecourt from finding that the Home Secretary’s decision was unlawful, and does not prevent ny legal challenge being made. It therefore continues to be the case that a person’s detention is subject to judicial oversight. Article 5(1)(f) of the ECHR does not prevent courts giving discretion to state authorities to decide whether there is a sufficient prospect of removal to justify detention. Giving discretion to the Secretary of State (as to whether there is a sufficient prospect of removal within a reasonable timescale to justify detention) is compliant with Article 5 ECHR. It is appropriate for it to be a matter for the Home Secretary rather than the courts, as it is the Home Office which is in full possession of all the relevant facts and best placed to decide whether continued detention is reasonable in all the circumstances.