Justine N Stefanelli, Judicial Review of Immigration Detention in the UK, USA and EU: from Principles to Practice

Justine N Stefanelli’s monograph “Judicial Review of Immigration Detention in the UK, USA and EU: from Principles to Practice”, Hart Publishing 2020, thoroughly examines the legal framework of immigration detention in three jurisdictions and analyses the application of the relevant provisions, focusing particularly on the case-law of first-instance courts.

Stefanelli introduces the topic of immigration detention by critically examining states’ framing of immigration as a national security concern and highlights the ‘use of detention as a tool of immigration enforcement (and) a manifestation of the growing tendency of states to criminalise immigration law’ (p. 5). She underlines the importance of judicial review in detention immigration cases, and points out that the right to liberty is often sacrificed by states for national security concerns (p. 18). Interestingly, the focus of the analysis rests not on last instance judgments, but on ‘a comparative forensic evaluation of first-instance case law in the UK (…), USA and EU’ (p. 11), thereby addressing a gap in existing literature. The book scrutinises 191 cases, whereby 63 of the examined cases originate from the UK, 110 cases from the USA, mainly from NY district courts, and 18 cases from the Court of Justice of the European Union (p. 12). The reader is reminded that these judgments do not necessarily “represent the final word in a case, as they may be appealed to superior courts in both the UK and the USA” (p. 87). The case-law of the Court of Justice of the European Union (hereinafter: CJEU) provides an interesting comparison. Even though the CJEU is a supranational court, it can receive preliminary references from Member States’ courts, including first-instance courts. Moreover, the CJEU’s judgments are binding upon every court in a Member State, irrespective of its hierarchy in the national system.

The discussion of the cases is preceded by a thorough and highly useful contextualisation of the legal framework, which first provides an overview of liberty in the historic context of immigration detention (chapter 2), followed by the current legal frameworks (chapter 3). Stefanelli diligently outlines the factors that have determined the choice of cases, the courts under scrutiny, and the period under evaluation.

The second chapter on “Liberty and the Historic Context of Immigration Detention” revisits the immigration-security nexus that has been created by states and highlights that the ‘state’s role in protecting liberties is in tension with its obligation to protect its citizens from harm’ (p. 31). Stefanelli points out that ‘[i]n an attempt to provide security to its citizens so that they may exercise their liberties without undue restraint, the state often restricts liberties, for example, through the use of preventive detention’ (p.31). This raises the interesting question of whether non-nationals’ human rights are accorded less protection than nationals’ human rights.

Regarding the deprivation of liberty, Stefanelli observes that the UK is an outlier, ‘in the sense that it is the only European state without a maximum length of detention prescribed by law, despite recommendations that a maximum should be adopted’ (p. 22, and pp. 144, 145).

The third chapter on the “Current Legal Framework” explores the development and rationale of the legal frameworks in each jurisdiction and focuses on the motivation behind the modern use of immigration detention in the UK, the USA, and the EU. Regarding the UK, the author points out that from 1997 to 2009, over seven pieces of legislation regulating immigration matters were passed, which dramatically expanded the detention estate and created over 80 new immigration offences (p. 35). Moreover, she notes that ‘the practice of mandatory detention of asylum seekers became commonplace, and was even approved by the ECtHR, subject to certain considerations’ (p. 35). Stefanelli observes that in contrast to the USA and the UK, the EU ‘comes from a background where discussion of fundamental rights is a necessary and routine aspect of lawmaking’ (p. 60). Moreover, she holds that while the ‘regulation of detention in the three jurisdiction shares similar qualities’ and the ‘grounds for detention under the legislative frameworks are roughly aimed at ensuring removal and preventing harm’ the ‘quality of the legal bases for detention differs across the three’ (p. 60).

The fourth chapter on “Judicial Intervention into Detention” provides an excellent and very valuable overview of the courts under scrutiny, their composition, the appointment of judges, the system of judicial review (and habeas corpus), as well as landmark judgments in immigration detention cases. In my view, two aspects deserve a special mentioning. The first being the appointment of judges to Federal Courts in the USA. The author highlights the ‘inherently political nature of federal courts, whose judges are appointed not only with regard to experience, but also political affiliation’, which is ‘seen less in the UK”’(pp. 68, 69). Stefanelli reminds us that that ‘the independence of the judiciary is particularly important in a context such as immigration law, where the law and policy emanates only from the state’ (p. 69). Importantly, she argues that ‘[t]he state’s ability to exert influence through the appointment of judges who are sympathetic to party ideals may impact the outcome of detention cases either directly or indirectly, especially where the political mood is one of anti-immigration and pro-deportation, as is the case particularly in the USA’ (p. 69).

Another aspect, which I found particularly interesting, is the impact of legal representation on case outcomes. Stefanelli notes that ‘[o]f the 15 successful habeas petitions in this book (or 13.6 per cent of US cases), 10 detainees had legal representation’ (p. 78). By contrast, in the UK “[i]n all of the Administrative Court cases […] the detainees were represented by an attorney […]. It bears repeating that the rate of success in these cases was 49.2 per cent’ (p. 77). Even though the author concedes that ‘the success rate in UK cases is owed partly to the nature of judicial review proceedings and the need to obtain permission to proceed’, she highlights that ‘the fact that all of the detainees in the UK had legal representation cannot be ignored as a contributing success factor, especially when viewed in comparison to the US cases, where most unrepresented detainees were unsuccessful’ (p. 78). This is particularly interesting against the background of the availability of legal aid. The UK has, as stated by Stefanelli, ‘a strong tradition of legal aid and pro bono advice. In the USA, though legal aid began its life as an initiative to assist non-citizens, it is no longer widely available to them’ (p. 77).

Regarding the shift to a more rights-based approach, Stefanelli notes that both the UK and the USA moved ‘away from rights-restricting stances to a more rights-protecting approach, though at different speeds’ (p. 87). While this shift occurred in the UK, most notably in the 1980s and was precipitated by the judgments in the cases of Khawaja and Hardial Singh, the development was triggered almost 20 years later by the US Supreme Court’s judgment in Zadvydas.

The fifth chapter outlines the “Balancing Factors” and addresses, among other criteria, the “legality tests”. The author notes that the tests that were developed in Hardial Singh and in Zadvydas ‘share characteristics’ and are based on the ‘basic tenet that detention must be reasonable in all the circumstances’ (p. 93).

The author explains that the assessment of reasonableness includes a range of factors. In both the UK and the USA, it comprises “an evaluation of whether the detainee poses a risk of flight or a danger to the community, or whether the detainee has co-operated with the state” (p. 93). The UK ‘goes beyond this to include consideration of the effect of detention on the detainee, and his or her family, and the conditions of detention’ (p. 94). According to the EU Return Directive, ‘detention is only permissible where there is a risk of absconding, or where an individual is avoiding or interfering with the return process’ (p. 94). Stefanelli notes that even though each jurisdiction ‘broadly reviews the legality of detention using the same criteria’ the weight given to these criteria in the balancing process differs ‘producing varied case outcomes’ (p. 95).

A particularly interesting aspect, in my view, is the discussion of the allocation of the burden of proof. The author points out that ‘[i]n UK judicial review proceedings, the burden of proof rests with the state, which has to demonstrate that detention is lawful and that removal is likely’ (p. 96). In the USA, by contrast, ‘the balance seems to fall in favour of the state, especially regarding an assessment of whether it has acted diligently’ (pp. 99, 100). The US ‘Supreme Court has held that non-citizens bear the burden of providing “good reasons to believe” that removal in the reasonably foreseeable future is unlikely, and that, if they sustain that burden, the government must provide “sufficient evidence” to rebut it’ (p. 100). In the EU, the likelihood of removal has only been considered in one case before the CJEU. Where the maximum duration of detention (Article 15(5) and (6) of the EU Return Directive) has been reached, the person concerned must be released immediately and the question of whether there is a ‘reasonable prospect of removal’ does not arise.

Other relevant factors that are considered in the assessment of the reasonableness of detention comprise the risk the foreigner’s conduct poses to the public as well as a risk of flight (pp. 104- 117). Further factors are the detainee’s non-cooperation (pp. 117-121) and the impact of the pursuit of legal remedies against removal and deportation (and the delay this causes). Stefanelli points out that ‘the UK and the EU each consider that legitimate attempts to seek relief should not be held against detainees’ whereas the pursuit of legal remedies in the USA ‘is counted against detainees’ (p. 122). She highlights that in ‘41 cases, the court denied relief in part (sometimes in the main) based on the fact that the detention was prolonged due to the individual’s pursuit of judicial remedies’ (p. 123).

The sixth chapter, “Using the Law”, examines the way in which the courts use broader legal principles to evaluate the legality of detention. The discussed principles comprise the doctrine of precedent, fundamental rights, the impact of detention time limits on judicial decision-making, and quality of law. Concerning fundamental rights, the right to liberty is key in the review of detention and, as Stefanelli points out, has been a guiding principle ‘[f]or many (UK) Administrative Court judges’ (p. 133). In the USA, by contrast, ‘liberty does not seem to be the driver of judgments in the district courts, where the focus is less on detainees’ rights and more about national security’ (pp. 133, 134). In the EU context, the ‘objective of the Return Directive – to limit the deprivation of liberty – is given effect’ by the CJEU’s insistence that the 18-month time limit for detention is absolute (p. 140). Next to fundamental rights, the quality of law has a considerable impact on case outcomes (p. 60 and pp. 151-155). The discussion of the quality of law is based on the requirements established by the European Court of Human Rights (hereinafter: ECtHR), namely that a law must be ‘(i) sufficiently accessible; (ii) sufficiently precise; (iii) foreseeable in application; and (iv) non-arbitrary’ (p. 151). Stefanelli observes that there are ‘clear problems with accessibility, foreseeability and precision’, concerning both the legal framework in the UK and the USA (p. 151). In light of these problems, she argues that it is ‘difficult to see how the ECtHR could validly conclude that the UK legal framework satisfies the principle of legality, and therefore Article 5 ECHR’ (p. 153). In contrast to these national systems, the EU, more specifically the Return Directive, ‘includes a vital safeguard against arbitrariness in the form of a maximum period of detention’ (p. 154). Moreover, the Directive, even though it has been subject to much criticism, ‘is precise and accessible in a way that the laws in the UK and the USA are not’ (p. 154), which ‘gives judges the specific tools and tests they need to review detention with certainty and arrive at rights-protecting outcomes’ (p. 156). The author convincingly demonstrates that the quality of law has a direct impact on case outcomes and that laws of an insufficient quality force judges to ‘fill the legislative holes’ which can result in ‘a poorer quality of decision-making’ (p. 155).

The seventh chapter, “The Business of Judging”, explores how the judges in each jurisdiction view their role. It begins with the role of judges as fact-finders, reviewers, or law-makers and emphasises differences between the three jurisdictions under scrutiny. First, UK Administrative Court judges ‘have given themselves a review role that exceeds the reasonableness standard’ with the consequence that they engage ‘in a full review, including establishing facts’ (p. 158). The US judges ‘only make findings in relation to whether removal is likely’ (p. 158). Unlike judges in the UK, US judges ‘do not reflect upon their role in any of the judgments. This might indicate a feeling that it is inappropriate to take an active stance in safeguarding the liberty of non-citizens’ (p. 158).

Moreover, this chapter addresses judges’ deference and points out that the UK Administrative Court judges ‘consider themselves as the guardians of liberty’ which is why they engage with the facts anew and only defer ‘where reasonable in light of state expertise’ (p. 171). The NY federal district courts, by contrast, ‘seem more willing to accept the view of the state in arguing that continued detention is appropriate’ (p. 167). Stefanelli explains that ‘federal district courts are engaging in deference based on the expertise of the immigration authorities, in particular, when it comes to estimating the progress of return proceedings’ (p. 168). However, she also reminds the reader that ‘[t]he fact that federal district court judges are appointed by the ruling political party potentially renders them susceptible to political pressure in a way that does not occur in the context of (UK) Administrative Court judges’ and that ‘this pressure may manifest itself in undue deference to the state’ (p. 169). At the EU level, deference does not play any role, as the CJEU’s primary task is ‘to ensure that the law is interpreted and applied correctly’ (p. 171).

The eighth, and final chapter, concludes the monograph by emphasising, among other core findings, the importance of fundamental rights for the effectiveness of judicial review, and by making recommendations for improvement for each of the three jurisdictions.

Stefanelli’s monograph contains a wealth of information, demonstrates thorough, in-depth, and rigorous scrutiny, provides very useful links across topics, and offers an excellent, detailed, and well-structured view on the topic from different angles. This review cannot do justice to all the aspects raised in the book, which provides many layers of discussion and scrutiny, of which only a few have been addressed in this review. The book provides food for thought for further research into the topic and addresses a broad readership in and beyond academia.