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Bingham Centre Launches Report on Immigration Detention and the Rule of Law

01/10/2013

This study has concluded. Read the final Report and browse the accompanying National Reports here

The Bingham Centre has published its report, Immigration Detention and the Rule of Law: Safeguarding Principles. Led by Michael Fordham QC, with Research Fellows Justine Stefanelli and Sophie Eser, this report draws on legal instruments, promulgated standards, working illustrations and judicial observations. It includes 'soft law' sources and finds inspiration in the principled proactivity of non-governmental organisations.

The Bingham Centre was awarded a research grant by the Nuffield Foundation in July 2012 to undertake a study on Immigration Detention and the Rule of Law.

There is a great deal of evidence that, both in the UK and elsewhere in Europe and beyond, immigration detainees are deprived of their liberty in accordance with procedures and under criteria and conditions which fall short of rule of law standards. This is a matter of great concern. Those subject to immigration control are entitled to a presumption of liberty and freedom of movement. Wherever possible, methods other than detention should be identified and employed. Where detention does take place, it should be subject to rigorous criteria, scrutiny and safeguards. Standards should be principled, clear and transparent, and consistent.

This project considers the problems and challenges of immigration detention and the question of appropriate rule of law standards considering law and practice from domestic, regional (EU and ECHR), international and comparative sources. The product will be clear, practical and effective guidelines (Safeguarding Principles) identifying necessary standards within a single, accessible document. An accompanying report will draw together, in a single commentary, the wealth of materials, principles and proposals which can be found in an array of disparate sources. Having invited the views of relevant organisations and individuals to a workshop in the spring, the Principles will be produced and disseminated as widely as possible in order that they can guide and inform decision makers, policy makers and representatives. They are also intended for use by immigrants, their advisors, and by individuals currently in detention, or facing detention proceedings.

In addition to considering international and regional standards, the study benefits from a selection of national reports from 11 focus States, which receive the largest influx of foreign nationals annually according to the OECD (listed below). The study also considers the situation in Greece in view of its recent trouble before the European Court of Human Rights.

The Research Team

Michael Fordham QC, Blackstone Chambers

The Bingham Centre is very fortunate to have as its prime researcher on this project and author of the report and Guidelines, Michael Fordham QC of Blackstone Chambers, one of the UK's leading authorities on immigration, civil liberties and public law. He regularly appears in leading human rights cases and has established a reputation for his arguments in leading cases in asylum and immigration cases, such as the recent MS (Jamaica) v Secretary of State for the Home Department [2011] EWCA Civ 938 (Court of Appeal 29.7.11) concerning the legality of fast-track immigration detention, Lumba v Secretary of State for the Home Department [2011] UKSC 12 [2011] 2 WLR 671 (Supreme Court 23.3.11), concerning the legality of immigration detention pursuant to an unpublished policy, R (CJ (Dominica)) v Secretary of State for the Home Department [2011] EWCA Civ 1238, which concerns the legality of immigration detention of individuals with HIV, and the absence of continuity of retroviral treatment, Shepherd Masimba Kambadzi v Secretary of State for the Home Department [2011] UKSC 23 (which applied the judgment in Lumba). Mr Fordham also appeared on behalf of the UK Government in the leading Strasbourg case on Article 5, Saadi v UK [2006] ECHR 732.

Mr Fordham was appointed a Bencher of Gray's Inn in 2009, and as a Recorder (Civil) in 2010. He has written legal opinions which have been relied on by the Constitutional Affairs Committee in 2003 (legal aid reform) and 2004 (asylum and judicial review); the Work and Pensions Committee in 2004 (health and safety enforcement policy); and the All-Party Working Group on Rendition in 2008 (extraordinary rendition). The Law Commission's working and consultation papers from 2006-2009 on monetary remedies against public authorities arose out of a groundbreaking article Mike had written in 2003.

Mr Fordham is author of the acclaimed Judicial Review Handbook (6th edition, 2012). It has been cited with approval at all levels of the Courts including, in the House of Lords/Privy Council: Boddington [1999] 2 AC 143, 170E; Burkett [2002] UKHL 23 at [38]; ProLife [2003] UKHL 23 at [138]; Cullen [2003] UKHL 39 at [5]; Tweed [2006] UKHL 53 at [36]; Sharma [2006] UKPC 57 at [14]; Bahamas Hotel Maintenance [2011] UKPC 4 at [23]. He co-edits the quarterly practitioners' journal Judicial Review (since 1996) and wrote or co-wrote chapters for the books Administrative Law, Facing the Future and Understanding Human Rights Principles. He has written more than 50 published articles in legal journals.

Justine Stefanelli, Maurice Wohl Fellow in European Law, Bingham Centre for the Rule of Law

The Project Manager and additional researcher is Justine Stefanelli. Justine has been with the Institute since 2006, and the Bingham Centre since its inception in 2010. At present, she manages the Institute's EU law programme and since her appointment in the Bingham Centre has focused her research on EU rule of law issues. Most recently, Justine has been involved in a Bingham Centre study on the rule of law implications of the UK's decision not to participate in two EU legislative proposals regarding asylum procedures and reception conditions.

Justine holds a B.A. in Psychology from Duquesne University (US) and a Juris Doctor (LLB) from the University of Pittsburgh (US) with a specialisation in international and comparative law where she was awarded an International Fellowship to study European Law in Brussels. Justine also holds an honours certificate in European Law studies from the Vrije Universiteit Brussel (Belgium), and an LLM in European Law studies from Queen Mary, University of London, specifically focused on the European Internal Market and Justice and Home Affairs. She is licensed lawyer in the US, having passed the bar in the state of Pennsylvania in November of 2005.

Sophie Palmer, Research Fellow in Detention and the Rule of Law

Sophie holds a BA in Jurisprudence and an MSc in Criminology and Criminal Justice from Keble College, Oxford. Her doctoral research at the University of Oxford, considered through ethnography the experience and effect of imprisonment and 'privatisation culture' on men in two private prisons in England. She was previously Stipendiary Lecturer in Law and Admissions Coordinator at Balliol College, Oxford and Lecturer in Law at the University of Buckingham. Her teaching experience includes Constitutional, Criminal and Family Law, as well as Legal Skills and Procedure. Her research interests are the broad tenets of Criminal Justice and Punishment with a particular focus on prisons and immigration detention, prisoners' rights, the role of the State in the management and administration of punishment and the privatisation of criminal justice services.

Focus States

■ Belgium

■ France

■ Germany

■ Greece

■ Italy

■ Netherlands

■ Russia

■ Spain

■ Switzerland

■ Ukraine

■ United Kingdom

Questions concerning the study should be directed to Justine Stefanelli at j.stefanelli@biicl.org.