Detention of Children in Immigration Facilities a Breach of Human Rights

Suppiah & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) (11 January 2011)

Summary

The High Court of England and Wales decided that two families who had sought asylum in the United Kingdom were detained unlawfully by the Secretary of State for the Home Department (Defendant) because the Defendant failed to have regard to its duty to safeguard and promote the welfare of children.

Facts

Reetha Suppiah and Sakinat Bello (the First and Fourth Claimants) and their young families were Malaysian and Nigerian nationals respectively.  After arriving in the United Kingdom and having their applications for asylum refused, both families were arrested by the United Kingdom’s Border Agency (UKBA) and taken to Yarl’s Wood Immigration Removal Centre to await removal to their countries of origin.  The directions to remove both families were cancelled for various reasons shortly after they arrived at Yarl’s Wood.  There was some evidence that some of the claimants suffered poor health while in detention.

In the United Kingdom, the detention of families with children pending removal or deportation is governed by the Borders, Citizenship and Immigration Act 2009 (BCI Act) as well as various policies published by the Defendant.  Section 55 of the BCI Act requires the UKBA to carry out is functions ‘having regard to the need to safeguard and promote the welfare of children’.  The Defendant had also issued policies to the same effect.  The Defendant also had policies that detention of families with children was to be used as a last resort and for the shortest possible period of time.  The UKBA was also directed to have regard to the United Kingdom’s obligations under the European Convention of Human Rights.

The claimants all contended that they were detained unlawfully.  They also contended that their rights under art 3 (the prohibition against torture or to inhuman or degrading treatment or punishment), art 5 (the right to liberty and security of person) and art 8 (the right to respect for private and family life, home and correspondence) of the European Convention were infringed.  In addition, the claimants contended that the Defendant’s policies on detaining families with children were unlawful under the UN Convention on the Rights of the Child (CRC) because they did not expressly say that the detention of families with children should only occur in exceptional circumstances and certain procedural safeguards were absent.

Decision

The First Claimant and her Children

Mr Justice Wyn Williams found that there was no evidence that the decision-maker had properly considered his or her duty under s 55 of BCI Act.  Further, His Lordship found that the detention of the First Claimant and her children was in direct conflict with the Defendant’s policies, specifically, that the decision-maker have regard to s 55 of the BCI Act; that all reasonable alternatives to detention be considered; and finally, that detention only be used as a measure of last resort.  His Lordship found that the decision-maker had failed to act in this manner and that consequently, the detention of the First Claimant and her children was unlawful under domestic law.

His Lordship found that there was no breach of art 3 of the European Convention in this case because the ‘minimum level of severity’ was not reached.  His Lordship found that there was a breach of art 5 for the same reasons that the detention of the First Claimant and her children was unlawful under domestic law.  His Lordship also found that there was a breach of art 8 because unlawful detention was an unacceptable infringement of a person’s private life.  However, His Lordship found that there was no breach of Article 8 arising from the treatment they received while in detention.

The Fourth Claimant and her Child

Mr Justice Wyn Williams found that there was no evidence that the decision-maker in this case had considered his or her duty under s 55 of the BCI Act.  His Lordship also found that the detention of the Fourth Claimant and her child was not a measure of last resort since alternatives had not been explored adequately or at all.  His Lordship also found that the risk of the Fourth Claimant and her child absconding was not high enough to warrant their detention.

In this case, breaches of arts 5 and 8 of the European Convention were proved for the same reasons they were proved in relation to the First Claimant and her children.

Defendant’s policies

Mr Justice Wyn Williams found that the polices regarding the detention of families and children were consistent with the United Kingdom’s obligations under the CRC and were therefore not unlawful.  His Lordship found that upon the proper operation of the policies, detention of families with children must only be used in exceptional circumstances and as a last resort.  Although these policies might not always be applied with sufficient rigor the policy itself is not necessarily unlawful.

Relevance to the Victorian Charter

The decision that the detention of the claimants was unlawful under United Kingdom’s domestic law is unlikely to be directly relevant to the application of the Victorian Charter as immigration law is administered by the federal government.  However, the Court’s interpretation of arts 3, 5 and 8 of the European Convention may have implications in Victoria given the close parallels between those articles and ss 10, 21 and 13 of the Victorian Charter.

The decision is at www.bailii.org/ew/cases/EWHC/Admin/2011/2.html.

Meg O’Brien is former secondee to the Human Rights Law Centre from Mallesons Stephen Jaques