Source · Select Committees · Human Rights (Joint Committee)
Recommendation 102
102
Rejected
Others argue that it may be having little to no effect in practice.
Conclusion
Others argue that it may be having little to no effect in practice. Medical Justice and Bail for Immigration Detainees submit that, in the context of applications before the High Court for release of detainees, “the Home Secretary often does not rely on section 12 and that when she does raise it her representatives often appear reluctant to place much weight on it.”137 Nevertheless, in their joint written submission, Medical Justice and Bail for Immigration Detainees argued that section 12 should be repealed because “even if the Home Office does not currently rely on it, it is causing significant uncertainty about the law.”138
Government Response Summary
The government defends Section 12 of the Illegal Migration Act 2023, stating it provides a clear and compliant legislative framework for detention decisions and is appropriately a matter for the Home Secretary, implicitly rejecting the argument that it should be repealed due to causing legal uncertainty.
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.