An end to child detention?: how a High Court judgement brings us closer

Simon Parker

This article originally appeared in openDemocracy, 13 January 2011.

In the High Court on Tuesday, Mr Justice Wyn Williams might have driven the last nail into the coffin of Britain’s infamous and long-running child immigration detention policy. The detaining of children for immigration purposes has been denounced as a ‘scandal’ and a ‘moral outrage’ by the Prime Minister and Deputy Prime Minister, yet the current Home Secretary has spared no expense in expertly and robustly defending the policy.

The action was brought at the end of last year by Public Interest Lawyers on behalf of a Malaysian family of three and a Nigerian mother and her baby. Liberty and Bail for Immigration Detainees supported the action (Suppiah and Others vs SSHD and Others). In a judgment that noted Nick Clegg’s repeated disavowal of child detention as morally repugnant, the judge found that:

“The Defendant’s current policy relating to detaining families with children is not unlawful. There is, nonetheless, a significant body of evidence which demonstrates that employees of UKBA have failed to apply that policy with the rigour it deserves.”

Specifically, the UK Border Agency were held to have breached the families’ rights to liberty, privacy and family life (their Article 5 and Article 8 rights), though not Article 3, which relates to inhuman or degrading treatment or punishment.

The Home Office does not contest that both families were arrested in the early hours of the morning, were given only a short time to pack, transported in locked and caged vans, and that a very young girl was body searched with her arms outstretched to the obvious distress of her mother.

Reetha Suppiah and her two sons, and Sakinat Bello and her baby, were then locked up at the infamous Yarl’s Wood Detention centre. As with many thousands of families to be sent there, soon after being taken into detention the children became sick and suffered from diarrhoea and vomiting. Reetha’s eldest son continues to suffer from a fear of authority and recalls seeing ‘policemen everywhere’ in detention.

In finding that “the detention of children is not something which should ever be lightly countenanced or allowed to continue except in such circumstances which clearly justify it and which do not reasonably permit of alternatives”, Justice Williams gave a clear and resounding rebuke to the policy of previous home secretaries, immigration ministers and their senior civil servants.

As is now well documented, government ministers did not detain families for the ‘shortest time necessary’ and ‘as a last resort’, but partly in order to deter would-be future asylum seekers. As Justice Williams noted, quoting the UKBA head of detention, Dave Wood, the risks of families absconding remain very low. According to the Agency’s own guidelines, detention should be reserved only for those who have previously failed to comply with bail or reporting conditions or who present a threat or danger.

Home Office officials will try to save some face by pointing out that the policy of detaining families is not in itself unlawful. Meanwhile, everyone from the Prime Minister and Deputy Prime Minister downwards will insist that even if it is lawful, detaining families with children is no longer government policy and is soon to be brought to an end.

But in the light of Justice Williams’ verdict, which the Home Office has said it will not appeal, can a cash-strapped UKBA really run the risk of paying out six figure sums in compensation to every asylum seeking family it detains between now and May?

If the newly re-purposed Tinsley House ‘pre-removal’ facility results in children spending weeks or months in semi-detention, allowed out without their parents only in the company of government-approved ‘minders’, how confident will the Home Office’s lawyers be about going back to the High Court to argue the ‘last resort’ and ‘shortest possible time’ case?

This judgment lays to rest the ghost of New Labour’s ‘compassionate detention’ past. But the sound of the clanking chains of privatised detention regimes to come can just be heard on the distant fringes of Gatwick.

Nick Clegg has every reason to fear the voters of Oldham East and Saddleworth (and not just the ‘angry white’ ones) for back tracking on his election promises. Now, in the words of the late Lord Bingham, he and his government have to worry about the revival of an “older and nobler tradition…the remedy of habeas corpus, the most potent safeguard against executive tyranny the world has devised”.

If ‘executive lawlessness’ cannot and will not be addressed by parliament, then as Tom Bingham so powerfully argued, it is the duty of the justice system to protect the liberties and rights of subjects, whatever their immigration status or nationality.

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