Rule of Law

Bingham Centre Publishes 'Immigration Detention and the Rule of Law: Safeguarding Principles' by Justine Stefanelli

The use of detention as a means of immigration control has become increasingly widespread. In many countries, non-citizens may be detained indefinitely, awaiting a decision on whether they may be allowed to enter or remain on the territory. Despite its extensive use by governments, there is a great deal of evidence that, in many countries, immigration detainees are deprived of their liberty in accordance with procedures and under criteria and conditions which fall short of rule of law standards. It is vital that adequate procedures are in place to protect the liberty interest of individuals and to ensure respect for the rule of law.

In October 2013, the Bingham Centre published a set of 25 Safeguarding Principles (SP) and accompanying commentary, intended to promote practical and effective protection under the rule of law. Funded by a grant from the Nuffield Foundation, these progressive standards draw on legal instruments, promulgated standards, UNHCR and NGO Guidelines, working illustrations and judicial observations, extrapolated from national, regional and international contexts. The Safeguarding Principles focus on the procedural processes relating to the decision to detain. For example, SP3 suggests that the relevant criteria and processes associated with immigration be clear and published; SP5 recommends that detention can only be imposed and carried out by an authorised authority; SP21 calls for every detainee to be brought promptly before a judicial authority for an assessment of the appropriateness of detention; and SP22 suggests that review of the appropriateness and conditions of detention should be ongoing. However, the Safeguarding Principles move beyond procedure to consider substantive issues such as the right to liberty and equality (SP1 and SP2), the conditions of detention (SP19 and SP20) and the need to explore whether alternatives to detention are appropriate in the circumstances (SP8).

The Safeguarding Principles have relevance and resonance wherever immigration detention is practised, designed and scrutinised under the rule of law. For example, in the United Kingdom there is currently a Parliamentary inquiry into the use of immigration detention which explores several issues covered by the Safeguarding Principles, such as whether a maximum duration of detention should be set in law, and the extent to which the judiciary should be involved in the making and confirmation of executive orders for detention. Several of the Safeguarding Principles, such as the presumption of liberty (SP1), the right to an individualised assessment (SP7) and the requirement of necessity (SP13) are relevant to any country that practices mandatory immigration detention, such as Australia and the United States.

The Safeguarding Principles and commentary are aimed at assisting state governments in enacting and carrying out their detention policy; helping judiciaries in their full consideration of these issues; aiding immigration officials in the implementation of their policy; and informing individuals liable to detention or currently in detention as to the rights applicable to them.  

The Safeguarding Principles can be downloaded at:

http://www.biicl.org/files/6559_immigration_detention_and_the_rol_-_web_version.pdf

Justine Stefanelli is Maurice Wohl Associate Senior Research Fellow in European Law at the Bingham Centre for the Rule of Law.

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