Immigration Detention, Deportation and Judicial Review in the Age of Covid 19

Authors

  • Zia Akhtar PhD, Coventry University, London, UK

DOI:

https://doi.org/10.18662/eljpa/9.2/189

Keywords:

Administrative detention, Immigration Act 1971, Judicial Review, COVID-19, Hardial Singh principles, Rule 35, Shaw report, Medical Justice report, BMA - locked up locked out immigration detention report

Abstract

The first significant issue arising out of the COVID-19 pandemic for migrants who have been refused stay to come before the Administrative Court has been the question of the continued legality of immigration detention in the face of the risks and practical difficulties arising from the crisis. The pandemic raises two vital issues affecting the legality of immigration detention; on the one hand, that detainees may invite an increased risk of infection by reason of the “congregate” setting of detention centres, and on the other that removals in the short term will not be possible and that the probability of removal is uncertain even in the medium term. The issue is if the Home Office policy is  “irrational and discriminatory” in its approach, which has led to inconsistencies in how the detention cases are handled. This paper enquires if the merit based judicial review can expedite the cases where administrative detention is concerned in circumstances of medical emergency. The argument here is that the Home Office should give full credence to the medical impact of detention to act in accordance with the Hardial Singh principles and by keeping in perspective the pandemic and the BMA reports of the unreasonableness of detention before deportation.

References

British Medical Association. (2017). Locked up-Locked out' Health and human rights in immigration detention. British Medical Association. https://www.bma.org.uk/advice-and-support/ethics/working-in-detention-settings/health-and-human-rights-in-immigration-detention

Buley QC, T., Denholm, G., Goodman, A., & Jacobs, C. (2020, April 15). Challenging immigration detention in the Covid 19 pandemic. Landmark Chambers. https://www.landmarkchambers.co.uk/challenging-immigration-detention-in-the-covid-19-pandemic/

Bulman, M. (2021, January 9). Immigration Detention Centre Forced to Close due to Covid Outbreak. The Independent. https://www.independent.co.uk/news/uk/home-news/immigration-detention-centre-closed-covid-outbreak-home-office-b1784499.html

Council of Europe. (2016). Administrative detention. Council of Europe. https://www.refworld.org/pdfid/5836f7834.pdf

Detention Action. (2021). 4 things you need to know about UK's treatment of EU citizens. Detention Action. https://detentionaction.org.uk/stories/4-things-you-should-know-about-the-uks-treatment-of-eu-citizens/

Glenton, J. (2021, January 7). Irresponsible and Inhumane’ Home Office Continuing with Deportations Despite Lockdown. The Canary. https://www.thecanary.co/trending/2021/01/07/irresponsible-and-inhumane-home-office-continuing-with-deportations-despite-lockdown/

Global Detention Project. (2021, January 11). UK Immigration Detention Profile. Global Detention Project. https://www.globaldetentionproject.org/countries/europe/united-kingdom

Home Office. (2016a). Immigration Rules Part 12. Procedure and Rights of Appeal. Home Office. https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-12-procedure-and-rights-of-appeal

Home Office. (2016b). EU Citizens: Refusal of right to entry. Home Office. https://www.whatdotheyknow.com/request/393112/response/972239/attach/html/11/Annex%208%20Border%20Force%20EEA%20nationals%20refusal%20of%20admission%20v3.0%2016....pdf.html

Home Office. (2016c). Immigration Act 2016, Guidance on adults at risk in immigration detention. 2018., Indicators of Risk. July 2018 Parah 11. Home Office. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721237/Adults_at_risk_in_immigration_detention_-_statutory_guidance__2_.pdf

Home Office. (2018a). Judicial Review and Injunction. Immigrant returns, enforcement and detention, General Instructions, Version 17.0. Home Office 5/11/18.

Home Office. (2018b). Report Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons A follow-up report to the Home Office by Stephen Shaw, July 2018, CM 9661, Para 1.17. Home Office. https://www.gov.uk/government/publications/welfare-in-detention-of-vulnerable-persons-review-progress-report

Home Office. (2018c). Amends its removal policy. Right to Remain. Legal Updates. 30/11/18. Home Office. https://righttoremain.org.uk/deferral-of-removal-notice-period/

Home Office. (2020). Nationality Policy: Naturalisation as a British citizen by discretion. Home Office 14/05/20. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1120308/Naturalisation_as_British_citizen_by_discretion.pdf

Home Office. (2021). Guidance for IRCS, Residential Short Term Holding Facilities (RSTHFs) and escorts during the Covid 19 pandemic. Version 5.0 27 January 2021, p. 6. Home Office. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/957918/detention-and-escorting-services-guidance-during-covid-19-v5.0.pdf

Home Office. (2022). Judicial Review and Injunction. Immigrant returns, enforcement and detention, General Instructions, Version 23.0. Home Office 21/10/22. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/919646/chapter-60-judicial-reviews_v20.0ext.pdf

House of Commons. (2020). Immigration And Social Security Co-Ordination (Eu Withdrawal) Bill. House of Commons. https://publications.parliament.uk/pa/bills/cbill/58-01/0104/amend/immigration_day_rep_0629.pdf

Johnstone, C. (2017, December 21). Home Office policy of removing EEA national rough sleepers found to be unlawful. Garden Court Chambers. https://www.gardencourtchambers.co.uk/news/social-welfare-updates/home-office-policy-of-removing-eea-national-rough-sleepers-found-to-be-unlawful

Medical Justices. (2017). Response to the Shaw re-review of the adequacy of the government’s response to the “Review into the Welfare of Vulnerable People in immigration Detention”, November 2017. Medical Justices. http://www.medicaljustice.org.uk/wp-content/uploads/2018/07/MJ-submission-to-Shaw-II-30.11.2017-final-edited.pdf

National Statistics. (2019). How many people were detained or returned. Year ending November 2019. Statistics UK. https://www.gov.uk/government/publications/immigration-statistics-year-ending-september-2019/how-many-people-are-detained-or-returnedNNational

O' Carroll, L. (2020, January 16). Nearly one million EU citizens in UK yet to apply for settled status. The Guardian. https://www.theguardian.com/politics/2020/jan/16/nearly-1-million-eu-citizens-in-uk-yet-to-apply-for-settled-status

Public Health England. (2015). Service Specification No.29 (SS29) This is a service specification to accompany the ‘NHS public health functions agreement 2019-20 (the ‘2019-20 agreement’) published in December 2015. NHS. https://www.england.nhs.uk/wp-content/uploads/2017/04/Service-Specification-No.29-Secure-Detained-Settings-Eng.pdf

Royal Courts of Justice. (2017). Case No: CO/1440/2017, CO/2016/2017 & CO/2384/2017. Royal Courts of Justice. https://www.judiciary.uk/wp-content/uploads/2017/12/r-gureckis-v-sshd-ors-20171214.pdf

Royal Courts of Justice. (2020). Case No: No. CO/1101/2020. Royal Courts of Justice. https://www.judiciary.uk/wp-content/uploads/2022/07/Detention-Action-v-SSHD-CO-1101-2020-1.pdf

Schymyck, A. (2020). Ehat is the Adults at Risk Policy. Free Movement. https://www.freemovement.org.uk/what-is-the-adults-at-risk-policy/#:~:text=Torture%20victims,-The%20presumption%20that&text=Helpfully%2C%20the%20caseworker%20guidance%20does,accepted%20as%20Level%203%20evidence

Shaw, S. (2016). Review into the welfare of Vulnerable Persons. A report into the Home Office. Cm 9156 January 2016. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/490783/52532_Shaw_Review_Print_Ready.pdf

Townsend, P. (2017, December 3). Marcin was crying, begging for help’: crisis of EU migrants detained in the UK. The Guardian. https://www.theguardian.com/uk-news/2017/dec/03/marcin-gwozdzinski-immigration-centre-detention-death

UK Supreme Court. (2016). R(O)V Secretary Of State For The Home Department. Supreme Court. https://www.onepumpcourt.co.uk/cases/r-o-v-secretary-of-state-for-the-home-department/

UK Visas, Immigration, & Immigration Enforcement. (2016). Adults at risk in immigration detention. GOV.UK. https://www.gov.uk/government/publications/adults-at-risk-in-immigration-detention

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Published

2022-12-20

How to Cite

Akhtar, Z. . (2022). Immigration Detention, Deportation and Judicial Review in the Age of Covid 19. European Journal of Law and Public Administration, 9(2), 125-153. https://doi.org/10.18662/eljpa/9.2/189

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