[Editor’s Note: In this installment of I•CONnect’s Book Review/Response Series, Daniel Wilsher reviews Rayner Thwaites’ recent book on The Liberty of Non-Citizens: Indefinite Detention in Commonwealth Countries (Hart 2014). Rayner Thwaites then responds to the review.]
Review by Daniel Wilsher
–Daniel Wilsher, City University London, reviewing Rayner Thwaites, The Liberty of Non-Citizens: Indefinite Detention in Commonwealth Countries (Hart 2014)
In his book Rayner Thwaites provides a detailed analysis and critique of the jurisprudence surrounding long-term (indeed, indefinite) immigration detention in the United Kingdom, Canada and Australia. During the period 2000-7, the historical convergence of immigration detention policies in these three countries, which saw governments being willing to take the heterodox step of imposing indefinite detention, provoked extensive litigation in the highest courts. The common tradition amongst Commonwealth nations which holds a strong attachment to the rule of law and the principles of habeas corpus has traditionally provided an important link between the legal cultures of these diverse nations. The diverging responses of Commonwealth courts when faced with challenges to indefinite immigration detention therefore provided a rich and intriguing body of jurisprudence for legal scholars. For immigrants in detention, the jurisprudential niceties have had profound consequences: for some, their liberty has been restored after long periods of incarceration, for others, detention has continued for years until their removal has been effected (or some form of visa has been grudgingly issued to them).
Thwaites rightly takes the view that there are important legal and philosophical questions at the heart of the diverging responses of courts to such cases. Indefinite detention forces courts to examine their deepest convictions about the inherent differences (or commonalities) between citizens and foreigners. It is plain that the State may, both constitutionally and under international law, do many things to foreigners that it cannot do to citizens. Deportation is the most obvious such step. Detention pending deportation is another. The questions facing judges have been: what substantive and/or procedural limits, if any, does the constitution impose upon the government’s power to detain where a foreigner remains unauthorised to be on the territory?
In the Australian High Court decision in Al-Kateb the majority gave the most expansive power possible to the government; detention was constitutional so long as a person remained unauthorised to enter regardless of any question of national security or flight risk. The Canadian Supreme Court decision in Charkaoui held that the government was entitled to detain indefinitely where a deportable foreigner had been found to be a national security risk subject only to procedural due process guarantees on the question of dangerousness. In the United Kingdom House of Lords decision in A v Others, the majority found that once deportation proved impossible that detention on national security grounds was a discriminatory and disproportionate interference with the equal right of foreigners to liberty (particularly where citizens could not be interned where they presented the same threat). This latter decision, granting substantive protection against indefinite detention, followed a similar result in the US Supreme Court in Zadvydas in 2001 (although significantly that case did not involve national security).
These three divergent responses by Commonwealth courts speak of profoundly different views as to the inherent right to liberty of foreigners. As Thwaites suggests, they can be characterised as ‘rights-precluding’ in the case of the Australian and Canadian cases, whilst ‘rights-protecting’ in the UK case. As registered by Thwaites, this conceals further levels of divergence within the jurisdictions, with lower courts reaching opposite answers to the same questions posed to the highest courts. The renowned jurist and legal philosopher John Finnis argued in 2007, after the trio of cases were decided, that under long-established practice and international law, foreigners did indeed have no liberty right once it was determined that they posed a threat to citizens. This position is consistent with the Charkaoui decision and contrary to the judgment in A and Others. Even for Finnis however, the Al-Kateb decision is an outlier because it did not concern core national security matters but appeared to equate any infiltration by foreigners with national security concerns. Thwaites rightly questions Finnis’ very traditional notion of the status of foreigners with its roots in the older regime governing enemy aliens. He argues, as did Lord Bingham in A and Others, that modern international human rights law has emphasised the equal status of foreigners’ subject only to proportionate and rational exceptions. Importantly, Lord Bingham’s leading judgment relied heavily upon United Nations human rights instruments on non-discrimination and soft law sources on the legitimate response to terrorism following the attacks of September 11 2001. This was significant because these instruments have not been incorporated into the UK’s dualist constitution. This is in contrast to the European Convention on Human Rights which is part of domestic law in the UK but from which there was much less ‘rights-protecting’ material to draw upon regarding immigration detention.
There are two important unresolved questions regarding the scope of the judgment in A and Others. These also raise broader questions about the citizen/foreigner divide. First, was it crucial to the court’s reasoning that, as a matter of fact, significant numbers of British citizens were also known to the security services to present a threat of international terrorist activity? On one view, this agreed statement of facts meant that the House of Lords was able to find that the government response was disproportionate and discriminatory because there was a comparator of an equivalent dangerousness (British suspected terrorists) against whom no powers of internment had been taken. The government could not rationally conclude that allowing such persons to remain at large whilst detaining foreigners was a proportionate response. Of course, the position of Finnis is that citizens are entitled to their liberty until charged as an inherent right annexed to citizenship, a right not shared by foreigners. However the government had effectively declared a state of emergency by derogating from Article 5 of the ECHR. In such a situation, internment of citizens is also permissible. The majority judgment effectively pushed the government to decide whether to extend internment to citizens or to remove internment from foreigners. But if there had been no evidence of a significant threat from British citizens would it not have been possible to say that there was no discrimination in practice? The power to detain pending deportation is a power that simply cannot exist in relation to citizens. This points us back to the question of the correct comparator: how far are we comparing citizens and foreigners in the abstract or more specific sub-groups (dangerous citizens and dangerous foreigners)? The law in relation to citizens generally prohibits preventive detention save for special circumstances such as mental illness or those deemed a flight or offending risk following criminal charge.
This leads to the second open question arising from the judgment in A and Others – how far was non-removability of the detainees a critical issue and what do we mean by ‘non-removable’? This is important because the jurisprudence of the European Court of Human Rights in Chahal found that a very long period of detention (six years) was not a breach of Article 5 where the UK government was making serious efforts to deport the detainee in a national security case. The due diligence standard was met because of the complexity of the case and the large number of legal challenges brought against deportation. In effect, the deportation proceedings were actively being pursued by the government and that was sufficient to meet Article 5 standards. In A and Others the government conceded that they could not presently send the detainees to their countries of origin because they would face torture. This did not mean that they were non-removable to other countries where they might have links or where the government might negotiate their admission. Furthermore, the government might have eventually secured assurances that their own country would not torture them. There is always a possibility that removal may become possible and governments may actively seek to bring this about for long periods. The UK government however appeared to have taken few, if any, steps of this kind by the time the case reached the House of Lords. In fact, their derogation from Article 5 (by means of Article 14) was premised upon their understanding that they could not fulfil the due diligence requirements of Article 5. This may however have been a mistaken assumption for the reasons set out above. In fact, the UK courts have since then held in a number of cases involving criminal deportation (see Lumba and Kambadzi) that very long detentions of up to 5 years can be consistent with the due diligence standard where a person is dangerous and deportation efforts have proved complex due to the behaviour of the detainee and/or third countries.
It is arguable therefore that, in the light of the elastic nature of Chahal standard, the UK government did not need to derogate from Article 5 but rather needed to show merely that they were continuing in their efforts to deport the detainees and that there was some prospect of this being successful. The passing of the derogation appeared to concede this issue and thus invited the House of Lords to conclude that the detainees were ‘unremovable’ and therefore that the detention was in fact no longer related to removal but had become a kind of national security internment measure. To conclude, the equal status of foreigners as regards the right to liberty established in A and others was contingent on both the existence of British terrorist suspects and also the derogation providing confirmation of non-removability. The outcome may have been very different if either of those factors had not been present.
Moving beyond the field of detention, these cases raise the broader question of what restrictions on the rights of foreigners may be legitimately viewed as immigration control measures rather than arbitrary and politically convenient gestures to appease an anxious citizenry. Citizens enjoy constitutional liberties that are often restricted for non-citizens (even those who are lawfully present) such as the right to choose their employer or to claim social security. In Europe, further restrictions are emerging. The UK has restricted the ability of foreigners to marry and required marriage parties to be aged at least 21 to sponsor foreign spouses. In Denmark, foreigners who naturalise as Danish citizens are now unable to bring foreign spouses into the country until they have been citizens for twenty years. These types of measures clearly discriminate against foreigners but they are claimed to be necessary to protect social cohesion, prevent forced marriage or promote integration. These are quite vague goals to measure but they have a strong purchase upon democratic debate. Nevertheless, the British courts held that the restrictions on the right to marry was disproportionate because there was a lack of strong evidence that it would stop marriages of convenience and forced marriage. Meanwhile the European Court of Human Rights upheld the Danish restrictions as within that State’s discretion to maintain social integration. These internal restrictions on foreigners’ broader liberties (rather than border or police type controls such as detention) are beginning to raise the same questions around the citizen/foreigner divide and to test the ambit of equal treatment that Thwaites covers in his treatment of detention.
A Reply to Daniel Wilsher
–Rayner Thwaites, University of Sydney
I am grateful to Daniel Wilsher for his response to The Liberty of Non-citizens. I draw on Wilsher’s work in the book and am honoured to be in a colloquy with him. He has focussed on the House of Lords decision in A and Others and accordingly I make that decision, and ongoing issues it raises about the citizen/foreigner divide central to this post.
Wilsher presses me on the contingency of the result in A and Others. The contingency of the result has, coincidentally, flared back to prominence in recent weeks due to a speech by Professor Finnis at Gray’s Inn Hall, London on 20 October 2015 (Wilsher wrote and submitted his post before then). Finnis’ speech, “Judicial Power: Past, Present and Future” was a broadside against “contemporary expansionist adjudication”, with A and Others presented as a leading example of this tendency. Finnis argues that A and Others was a “juridical debacle”. He states that he chose to target the case “Because it is the flagship case of today’s British human-rights-law movement…”, but that it is a “ghost ship, in reality a shipwreck”. His speech, introduced by the Lord Chancellor, was delivered in a context in which the replacement of the Human Rights Act 1998 (UK) with a British Bill of Rights is part of the governing party’s manifesto.
In his speech Finnis revisits and affirms his earlier arguments against A and Others, as set down in the Law Quarterly Review (LQR) in 2007. In his speech Finnis states that “My full argument about all this [in the LQR]…has gone quite unanswered, as far as I know”. Finnis’ 2007 article is analysed at length at a number of points in The Liberty of Non-citizens. Following Wilsher’s references to him, and Finnis’ speech, Finnis once again provides a good starting point for consideration of A and Others.
The reader can be forgiven for surprise that, almost 11 years after it was handed down, argument continues around A and Others. Finnis’ speech dramatizes how the decisions on the legality of indefinite detention, the subject of the book, continue to serve as a flashpoint, or better raw nerve, in debates about rights in the countries concerned. The prominence of Al-Kateb in the Australian consultation on a national bill of rights in 2010 attests to this. Charkaoui, and the Canadian security certificate regime that was its subject, continue to spark legal and political attention.
The continuing interest in these decisions on indefinite detention speaks to the oppositional terms in which they can be understood, directly implicating the question of what we owe non-citizens. In 2007, Finnis stated that “The problem of the indefinitely ‘irremovable’ foreigner…is a boundary problem at the intersection of…two building blocks of our constitutional scheme.” The building blocks were the state’s power to “admit, exclude and expel aliens” on the one hand, and constitutional principles of liberty and equality on the other. Finnis sees state power dangerously beleaguered by misconceived conceptions of rights. I do not see state power and attendant doctrine as brittle in that way. It is supple and can accommodate the relevant constitutional principles of equality and liberty.
The Liberty of Non-citizens is a contextual legal study of these “leading cases”. That study exposes the contingency of the decisions, in relation to both the characterisation of the facts and the law in the litigation. The aspect of that contingency of particular interest to me was the way in which, within the law of each country, diametrically opposed views, for and against the legality of the indefinite detention of non-citizens, were available to, and expressed in, judicial reasoning. It is not just that there was no inevitability to the result. Competent judges in each jurisdiction, imbued with an ethos of fidelity to the law, came to very different conclusions. What is missing from Finnis’ account of the A and Others litigation (and the case law on indefinite detention more generally) is a full sense of just how contestable the law was, the various points at which judicial agency was required, and the way in which different assumptions, about the nature of the rule of law and, critically, about the legal position of non-citizens, informed the exercise of that agency.
The contingency of Belmarsh: Wilsher
In the first half of this colloquy, Wilsher raises a number of points to highlight the contingency of A and Others. Before looking at these points, there is the question of whether, and if so how, such contingency matters. A and Others was the product of a highly specific constellation of facts and circumstances. It is arguably a ‘one-off’ that cannot be said to be ‘representative’ of the run of cases. The contingency of the decision counsels care in using it as a platform for generalisations about the merits, or ills, of the legal system in which it arose.
There is another register to contingency. The argument that it was fortuitous (or calamitous) for the result that things presented as they did can shade into an argument that the case was argued on a questionable basis (Wilsher), perhaps the product of “sophistical advocacy” (Finnis). The stronger the claim in this register, the more it goes to the decision’s justifiability.
More particularly, Wilsher concludes that “the equal status of foreigners as regards the right to liberty established in A and others was contingent on both the existence of British terrorist suspects and also the derogation providing confirmation of non-removability”. Both points go to the question of comparators (for the foreign terrorist suspects detained in A and Others), central to jurisprudence on equality and discrimination. I agree with Wilsher on the first point. The second is more vexed.
There is a thicket of issues to be worked through attending “non-removeability”. How such a requirement should be understood constitutes the main fault-line running through the judgments on the indefinite detention of non-citizens against whom a removal order has been issued. Wilsher is well aware of this. His points are: (i) that all Chahal, the then relevant authority on Art 5(1)(f) of the European Convention on Human Rights (ECHR), required was that deportation be pursued with due diligence and; (ii) that the government’s derogation from Art 5(1)(f) was treated by the court as confirmation that the detention measures did not meet this standard. Wilsher suggests that the government may have been mistaken in this assessment. The measures may have met the elastic standard for immigration detention set by Chahal without the derogation. The derogation was not only unnecessary but, from the government’s point of view, positively unhelpful.
The question whether the government could have met the due diligence standard depends on the relationship between the applicable legal standard and the facts. Even if one allows that Art 5(1)(f) could be successfully invoked if the government was taking steps to secure the detainees’ removal (as opposed to just keeping the prospect of removal under ‘active review’), it is not clear that the government was. To quote from the judgment of the European Court of Human Rights on the matter:
it was clear that during the periods when the applicants’ cases were being considered by SIAC [the appeal body at first instance] on appeal (July 2002 – October 2003), the Government’s position was that they could not be deported compatibly with Article 3 [read in the light of the prohibition on deportation to torture] and that no negotiations to effect deportation should be attempted with the proposed receiving states.
In these circumstances, a derogation from Art 5(1)(f) may have been well advised.
A further matter of relevance is that the House of Lords focussed on the “existence and width of the statutory powers, not the way they are exercised”, in circumstances where there was an express statutory power of indefinite detention.
As it was, the litigation in A and Others was on the lawfulness of the derogation. It was an appeal on a “derogation matter” under the relevant statute, framed by the criteria for lawful derogation under Art 15 of the ECHR, in particular the requirement that detention measures were “strictly required by the exigencies of the situation”. The focus was on whether a non-citizen’s vulnerability to removal justified confining the measures to non-citizens. It is in no small part because the reasoning in A and Others turned on what followed from a non-citizen’s vulnerability to removal, rather than on the content of a particular right, that the decision speaks to countries without such a right, such as Australia, where the same issues arise in the context of presumptions of statutory interpretation and the constitutional separation of judicial power.
The consequences of A and Others
A distinct line of objection to A and Others is that the House of Lords reasoning, going to rational connection and discrimination, could be (and was) addressed by extending the offending detention measures to British citizens. The government response to A and Others was in the form of control orders, sitting just at the periphery of ‘detention’ for the purposes of Art 5, applied to non-citizens and citizens. This extension of detention is seen as a reductio ad absurdum of ‘rights’ arguments for equality (notably in the Court of Appeal’s reasoning in A and Others). The ‘reductio’ view of the matter does not engage with the idea encapsulated in Justice Jackson’s statement in Railway Express (referenced by both the Court of Appeal and House of Lords in the litigation) that “that there is no more effective guaranty against arbitrary and unreasonable government than to require that the principle of law which officials would impose upon a minority must be imposed generally”. In the book I agree with the assessment of the Independent Reviewer that “the journey from indefinite detention (2001) through control orders (2005) to TPIMS (2011) has been in a liberalising direction”, albeit from a low base to a troubling end-point. I add, on review of the parliamentary debates, that the extension of the measures to citizens has contributed to the level of antipathy, and scrutiny, the measures have received. But this development was paralleled by a steady decline in the proportion of controlees who were non-citizens. Alternative measures were instead employed against non-citizens, primarily measures facilitating deportation. In short, while the extension of the ‘detention’ measures to citizens as well as non-citizens arguably contributed to an increase in legal protections, non-citizens gained little benefit from this. Justice Jackson’s proposition is arguably vindicated, but its force undermined. It does not address how a government subject to restraints in one area may readily employ other means.
The legacy of Al-Kateb
As with A and Others, the reasoning in Al-Kateb continues to be contested many years after it was handed down, though from the opposite direction, ie by those arguing against its ruling that indefinite detention was lawful. Prominently, this has occurred in Australian High Court judgments of recent years (see for example in Plaintiff M47), giving rise to attendant commentary. I discuss this in the book, but I underplayed an aspect of current developments that has become increasingly apparent. Starting with the Offshore Processing case in 2010, there has been a change of trajectory in the Australian case law. The focus has shifted from direct challenges to the government’s authority to detain, to the administrative law requirements that a litigant’s detention places on immigration processing. Al-Kateb has not been overturned, but administrative law judgments have moved to fill some of the large-C Constitutional space vacated by that decision. None of this is to deny that Al-Kateb still looms large in consideration of immigration detention, most directly with respect to unsuccessful applicants for protection visas who prove ‘non-removeable’.
The indefinite detention cases in wider perspective
The closing paragraph of Wilsher’s post opens out beyond detention. He raises the way in which immigration concerns have been used as a grounds for distinction between foreigners and the naturalised on the one hand, and birth right citizens, on the other, in various areas of life. He references restrictions on marriage. This ‘opening-out’ is salutary. There is a danger in studying these ‘leading cases’ on indefinite detention of non-citizens that the discussion will remain confined within a narrowed field of constitutional discourse, without regard for the wider context of detention of non-citizens, and beyond that, the way in which measures that are, actually or ostensibly, about immigration can affect us, whatever our citizenship status.
Suggested Citation: Rayner Thwaites and Daniel Wilsher, Book Review/Response on The Liberty of Non-Citizens, Int’l J. Const. L. Blog, Dec. 16, 2015, at: http://www.iconnectblog.com/2015/11/book-review-response-rayner-thwaites-and-daniel-wilsher-on-indefinite-detention
 A v Secretary of State for the Home Department  UKHL 56,  2 AC 68. Here I continue with the short name adopted by Wilsher. In the book I refer to it by its common short-name Belmarsh, after the prison where the detainees were held.
 John Finnis, “Judicial Power: Past, Present and Future”, 20 October 2015, Gray’s Inn Hall, London. See http://judicialpowerproject.org.uk/john-finnis-judicial-power-past-present-and-future/
 John Finnis, “Nationality, Alienage and Constitutional Principle” (2007) 123 Law Quarterly Review 417.
 Al-Kateb v Godwin  HCA 37, (2004) 219 CLR 562. On references to Al-Kateb in the Australian National Human Rights Consultation see National Human Rights Consultation Committee, Report on the Consultation into Human Rights in Australia (September 2009), 267-69.
 Charkaoui v Canada (Minister of Citizenship and Immigration) 2007 SCC 9,  1 SCR 350.
 Chahal v United Kingdom (1997) 23 EHRR 413.
 A v United Kingdom (2009) 49 EHRR 29, para 167.
 The Hon Justice John Basten, Book Launch, Rayner Thwaites, Liberty of Non-citizens, 21 August 2014, University of Sydney. See http://www.supremecourt.justice.nsw.gov.au/Documents/basten_20140821.pdf.
 Railway Express Agency Inc v New York, 336 US 106 (1949), 112-13.
 David Anderson QC, Terrorism Prevention and Terrorism Measures in 2012: First Report of the Independent Reviewer on the Operation of the Terrorism Prevention and Investigation Measures Act (London, the Stationery Office, 2013), para 1.13.
 Plaintiff M47/2012 v Director General of Security  HCA 46; (2012) 251 CLR 1.
 Plaintiff M61/2010E v Commonwealth  HCA 41, (2011) 243 CLR 319.