Following the High Court of Australia’s landmark ruling against indefinite detention of illegal migrants, reversing its 2004 decision, Shaharyaar Shahardar explores the vital role the judiciary must play in scrutinising immigration laws globally, ensuring adherence to human rights despite populist pressures.

On 9 November 2023, the High Court of Australia delivered a landmark judgement ruling against the indefinite detention of illegal migrants, some of whom have remained in prison for years. The decision overturned an earlier verdict passed in 2004 which justified the indefinite detention as long as the government intended to remove illegal immigrants as soon as reasonably practicable. On one hand, the Australian judiciary attempts to establish a jurisprudence taking into account the misery of migrants. Whereas, some countries have introduced even more stringent laws favouring such indefinite detentions which are violative of their international human rights obligations. 

Background of the NZYQ case 

The case of NZYQ v. Minister for Immigration and Anr. centred on a stateless Rohingya refugee, identified as “NZYQ” (hereinafter “Plaintiff”), who faced the prospect of life detention. Born in Myanmar, he arrived in Australia by boat as a teenager in 2012. Since 1992, Australia has implemented a policy of mandatory detention for all illegal immigrants arriving by boat. In 2013, the government intensified this policy, requiring the transfer of boat arrivals to offshore detention or turning back the boats to their country of departure. Although the Plaintiff had initially been granted a temporary visa, it was revoked in 2015 following his conviction for a criminal offence, leading to imprisonment. Upon completing his sentence in 2018, he was transferred to immigration detention. The Australian government rejected his visa application, citing he had committed a “serious crime and was a danger to the community.” As an ethnic Rohingya, the Plaintiff was denied citizenship under Myanmar’s 1982 Citizenship Law. Despite Australia’s efforts to secure resettlement in six other countries, all proposals were rejected. 

Consequently, NZYQ contested his detention before the Australian High Court. The Australian government in their written submissions opposed overturning the 2004 judgment of Al-Kateb v. Godwin which affirmed the legality of indefinite detention for illegal migrants. While acknowledging the challenge of resettling the Plaintiff, the government argued that the refusal of a third country to accept him did not necessarily preclude future possibilities. However, the court appeared to endorse the plaintiff’s averments which asserted that “there was no real likelihood or prospect of him being removed from Australia in the reasonably foreseeable future.” Following the Court’s order, the plaintiff has been released from detention. Moreover, the Ministry of Immigration has announced that other impacted individuals will be released and any visas granted to those individuals will be subject to appropriate conditions.

The High Court verdict: a step in the right direction?

Indefinite detention has been the fate of hundreds of thousands of illegal migrants across the world. Despite this large number, there has been little discussion on this topic. The Australian government had placed hundreds of non-citizens in immigration detention for years. The decision will now serve as a pathway for their release from prolonged detention. Furthermore, other countries have introduced even more stringent laws favouring such indefinite detentions which violate their human rights obligations. 

United Kingdom

In the United Kingdom, for example, the parliament recently enacted a legislation which removes access to asylum in the UK for anyone who arrives undocumented. It creates sweeping new detention powers, with limited judicial oversight. These new powers are not time-limited. However, according to the UK government, it will be in line with their other existing immigration detention powers wherein detention will be limited to a reasonable time. But what would constitute a reasonable time has been left to the whim of the executive which leaves it prone to being misused and abused.

United States 

In 2018, the US Supreme Court in Jennings v. Rodriguez, upheld the statutory authority of the Department of Homeland Security to detain illegal immigrants indefinitely during the pendency of removal proceedings. Later in 2022, the court in Johnson v. Arteaga-Martinez held that immigrants detained in the US are not entitled to bond hearing which meant that thousands of individuals with open immigration cases could be detained indefinitely. The Court however failed to make efforts to delve into the constitutional permissibility of such detention. Critics would argue that such constitutionality was already dealt with in Demore v. Kim back in 2003 but the Court did not decide whether there are any constitutional limits to the duration of this detention. The US Supreme Court has constantly shied away from addressing the duration of such detentions. 

India

Similarly, in India, the government has undertaken repressive measures to crack down against illegal immigrants across the country. In 2019, the government started constructing what is touted as Asia’s largest detention centre in Goalpara, located 150 kilometres west of Guwahati in Assam. According to a 2021 press release from the Ministry of Home Affairs, “detention and deportation of illegal migrants after nationality verification is a continuous process.” A critical inquiry raises a serious question concerning individuals who lack any recognised nationality. A notable example is the situation of ethnic Rohingyas, who have been systematically denied citizenship under the Myanmar Citizenship Law. The question then becomes: what is the fate of such stateless individuals?

Conclusion

Under international human rights law, immigration detention should be an exceptional measure of last resort, not a punishment. The laws that empower the government to indefinitely detain individuals, especially concerning countries like the UK, US, and India violate their international human rights obligations which they have undertaken conventions like UDHR, ICCPR, and UNCAT among others. Often, governmental actions tend to align with populist sentiments and electoral considerations. However, it is imperative that the constitutional courts of these countries proactively scrutinise the legality and constitutionality of such legislation and actions. The responsibility squarely rests on the judiciary to exercise robust oversight over the exercise of public authority, in consonance with the fundamental tenets of constitutionalism.

All articles posted on this blog give the views of the author(s), and not the position of LSE Human Rights, the Department of Sociology, nor of the London School of Economics and Political Science.

Image credit: Radek Homola