A sea change is needed on the detention of foreign nationals in the United Kingdom. Periods of detention have grown and grown in recent years. The Home Office never ask ‘should we detain this person’, they merely ask ‘can we detain this person.’
In a civilised country, the ultimate sanction for breaking the law is deprivation of liberty. It is a serious sanction. It should not be used lightly. The effect of detaining a person – the end of their life as they know it, a total curtailment of their social, private and family life and feelings of humiliation, shame and isolation– should never be underestimated.
Arguably, detention is already overused for home-grown criminals, as Nick Clegg, seemingly Galactic Leader-elect, suggests. It is massively overused for foreign national criminals. Judges are unwilling to grant bail even after periods of detention that would constitute serious criminal sentences. The reason given is that there is a possibility of re-offending, and/or a risk of absconding. Most judges are now inured to lengthy detention, it is has become so commonplace in the last handful of years.
There is always a risk, but even very small risks seem to be enough to justify incredibly long periods of detention. Judges seem overly aware of the possibility of media interest from the likes of The Sun and The Daily Mail. The Court of Appeal, in a very damaging decision, held that risk of re-offending is a lawful consideration, but on incredibly unsympathetic facts in that particular case (R (on the application of A) v SSHD  EWCA Civ 804). The facts of that case can be shown to be highly unusual, but judges continue to cite and rely on it.
In the recent Iraqi detention case of Ibrahim & Anor v Secretary of State for the Home Department  EWHC 764 (Admin) it is interesting to note that the interesting and novel arguments deployed by the lawyers were not those that won the day for the client. The judge held that since removals were not taking place to Iraq at the time of detention, detention was effectively indefinite and was therefore unlawful. The same arguments apply to many countries, including at different times Zimbabwe, Eritrea, Cuba and Sri Lanka off the top of my head.
The case doesn’t represent the kind of sea change that is needed, but it is encouraging. We have to see what the Supreme Court will make of the various detention cases wending their way there.