Guest post by Stephen Meili, University of Minnesota Law School. Stephen’s research focuses on the rights of non-citizens, particularly asylum-seekers and detainees, in comparative perspective. His current project compares detention practices in the US and the UK.

The detention of asylum-seekers in the United States and the United Kingdom has increased drastically over the past 15 years. Each country has justified such detention on the grounds that it’s necessary in order to safeguard the public and ensure that asylum-seekers will show up for hearings on their claims. The relevant programs in each country―Expedited Removal in the US and Detained Fast Track in the UK―allow for a relatively brief period of detention (typically less than 30 days, though sometimes considerably longer) while an asylum application is processed. They also permit initial determinations by government functionaries rather than judges. Applicants unsuccessful at this stage have the right to appeal to a judge, though the period for lodging such an appeal is extremely brief. While both policies have been roundly criticized by human rights activists and scholars alike, courts have generally upheld them. That is, until recently. In two decisions over the past few months, courts in each country have limited the ability of the government to detain asylum-seekers in certain circumstances.

Nogales Processing Center, US (Credit: Ross D. Franklin/Getty/Vox)
In February 2015, the United States District Court for the District of Columbia issued a preliminary injunction against the US government’s policy of detaining nearly all Central American women and children who had claimed asylum after crossing the border from Mexico. That policy was instituted in response to the large influx of migrants from El Salvador, Guatemala, and Honduras during the summer of 2014 who were fleeing gang-related violence. According to Homeland Security Secretary Jeh Johnson, the defendant in the class action lawsuit that resulted in the injunction, the policy was intended to deter would-be asylum-seekers. His message was the following: “If you come, it is likely that you will be detained and sent back.”

The District Court’s ruling is based on the notion that even though the plaintiffs are non-citizens, once they enter the United States, they are entitled to the protections of the Due Process Clause of the 5th Amendment to the US Constitution, which includes the right to liberty. And while that right isn’t unlimited―the detention of asylum-seekers has been upheld by US courts in a variety of other circumstances―in this case it trumps a policy based on deterring other would-be asylum-seekers from emigrating to the US.

Harmondsworth Immigration Removal Centre, UK (Credit: Adrian Dennis/AFP/Getty Images/The Guardian)
In December 2014, the UK Court of Appeal ruled that the continued detention of asylum-seekers who were appealing a negative determination at the first stage of the Detained Fast Track (DFT) process was unlawful. The Detained Fast Track was instituted in the early 2000s as a means of quickly disposing of asylum applications which the government deemed to be uncomplicated and of dubious merit. As the name suggests, asylum applicants assigned to the DFT process are detained as their claims are considered, including during an appeal of the initial determination by the Home Office. In a July 2014 decision resulting from a challenge by the NGO Detention Action, the UK High Court had ruled that the DFT process was unlawful as currently practiced, but not in principle. The High Court set out a number of recommendations for reform of the system, most notably improved access to legal representation.

In a separate decision issued in December 2014 involving the continued detention of asylum-seekers pending appeal, the UK Court of Appeal in first concluded that the DFT appeal process doesn’t meet standards of clarity and transparency because of the obtuse way in which it’s communicated to the public in relevant Home Office documents. The principle of transparency requires a transparent statement by the executive regarding the circumstances in which the broad statutory criteria will be exercised, in this case, to detain a person. The Court went on to hold that had it been necessary to decide whether the policy was justified, the Court would have ruled that it’s not justified under either the common law or Article 5 of the European Convention on Human Rights (ECHR), which establishes specific exceptions to the right to liberty in cases involving the detention of non-citizens. In reaching this result, the Court concluded that the evidence given by the Home Secretary regarding the necessity for detention pending appeal was insufficient to justify interference with a fundamental right. In large part, the Court concluded that asylum-seekers with appeals pending are by definition not at risk of absconding. The Court also noted the difficulties applicants face in preparing an appeal while detained.

barbed wire
These two decisions in two different countries suggest a willingness by courts in both jurisdictions to strike down at least some of the more egregious aspects of state policies that sanction the detention of asylum-seekers. These decisions are also notable in their differing use of human rights norms. For example, even though the right to liberty is among the most fundamental of all human rights, the 40-page opinion from the US District Court makes not a single reference to international human rights law. Its discussion of the limits to an asylum-seeker’s right to liberty is based entirely on US law; that is, the 5th Amendment and how it’s been interpreted by US courts and the US Attorney General. This, of course, should come as no surprise. US courts rarely cite to international human rights law, even when the rights at issue are protected by human rights treaties and other instruments which the US has signed and ratified. Many judges consider such treaties non-self-executing, and thus of little purchase unless they’ve been codified under US law. Indeed, US Supreme Court Justice Scalia once referred to international human rights law as a “brooding omnipresence in the sky.

Although the UK Court of Appeal decision is not a ringing endorsement of human rights law, it at least mentions it in passing. Indeed, the Court of Appeal could have based its ruling entirely on common law notions of transparency, clarity, and reasonableness. Instead, it added that, had such a ruling been necessary, it would’ve struck down detention pending appeal in the DFT context on Article 5 grounds. Of course, what has provided Article 5 with that kind of credibility in UK courts is the effective incorporation of the ECHR into UK domestic law through the Human Rights Act. But for such incorporation, it’s likely that the UK decision would have been as bereft of human rights references as its US counterpart. The juxtaposition of these two cases considering similar detention policies suggests that human rights norms have the greatest influence on state actors, including judges, when they’ve been incorporated into domestic law. At that point,  domestic courts are far more comfortable relying on them to strike down state policies that violate fundamental human rights.

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How to cite this blog post (Harvard style):

Meili, S. (2015) UK and US Courts Place Limits on the Detention of Asylum Seekers. Available at: http://bordercriminologies.law.ox.ac.uk/limits-on-the-detention-of-asylum-seekers/ (Accessed [date]).