CODE 18-77
CONFIDENTIAL
Reference
drafted, there would always be a risk
of the courts
holding that excessively long detentions are not for the proper purpose and are therefore unlawful. They consider that the present draft gives them as much legal protection as they could reasonably expect. Having discussed the various drafting options with them at some length, I would endorse their assessment.
4.
In the unfortunate event of the courts finding the length of detention to be unreasonable in typical cases, Messrs. Leeks and Wingfield suggested various responses which HKG could consider. Much would depend on the terms of the particular judgment, and the overall state of play at the time. Allocating more resources to screening to speed up the process might be difficult, but not necessarily impossible. The main problem would be providing adequate training for new officials quickly enough. It is hoped that in any event within the next year the backlog will have been substantially cleared. (It is currently taking place at the rate of approx. 200 per week). Once the backlog is completely cleared, it should be possible to screen each new arrival within 6-8 weeks. This should in itself eliminate the risk of legal challenge. Once mandatory repatriation is properly underway, it would in their view, be feasible to open some of the camps and bail people out pending their removal. Converting closed camps into open camps has been done before and would not necessarily be difficult. At present there are no legal powers to release VBP on bail, but powers could be introduced speedily if required. Mr Leeks considers that releasing screened-out VBP on bail could be politically acceptable locally if repatriation is clearly going to take place within a finite period. It would be unacceptable at present primarily because it would mean, in effect, permitting them to settle indefinitely.
5.
Power to transfer
Messrs.
I asked whether it would be feasible to provide for appeals against transfer to be heard by an independent body rather than making the decision of an official final. Leeks and Wingfield saw no objection to this in principle, (though there might be some slight resource implications), but their overriding concern was that the power to transfer be enacted or at least announced before the conclusion of the current judicial review proceedings (due in mid-April). Otherwise a flood of new applications is likely to result. They hope that Ministers will therefore permit the amendments to be enacted in their present form, on the basis that independent review procedures could be added later. This seems to me to be a reasonable basis for compromise, provided we have some assurance that this aspect will be dealt with expeditiously.
6.
They did however make clear that independent review procedures could only apply to cases where transfer is carried out for reasons of good order or management. Other cases
CONFIDENTIAL