Recommendation 11

HM Government · verbatim extract 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. The requirement in Article 5(4) ECHR that there must be recourse to the courts to find that detention is unlawful and to order the release of the detained person is still complied with. There continue to be new challenges alleging unlawful detention, evidence that this complies with the requirement of Article 5(4) ECHR. The Government is committed to ensuring an effective immigration and asylum system and has retained certain measures of the IMA 2023 where they have been assessed as beneficial to that aim. As set out, this provision provides a clear legislative framework for operational detention decisions and is compliant with the ECHR.