XN000022-1996-04-24 — Page 22

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In 1994, the UNHCR brought to our attention that a number of voluntary repatriation applicants had been awaiting clearance for return for some time. We examined these cases and concluded that there were 124 migrants who, because of their individual circumstances, had little prospect of being returned in the immediate future and thus their further detention might be unlawful. They were accordingly released on recognizance in November 1994.

Between early 1995 and March 1996, a habeas corpus action involving four Vietnamese migrants was considered successively by the High Court, the Court of Appeal and the Privy Council. These Vietnamese migrants argued that the Vietnamese authorities had a policy of not taking back non-nationals, that they were non-nationals and, thus, if they applied to return they would be rejected; consequently, the purpose of their detention was therefore spent and they could no longer be lawfully detained. The Privy Council accepted these arguments in respect of three of the appellants. As for the fourth one, although neither the High Court nor the Court of Appeal found him to be a non-national, the Privy Council believed that given the time that he had been awaiting clearance, he would not be accepted for return and should also be released.

Consequent to the Privy Council judgement we have, after careful consideration, released 254 VMs to date who, in our judgement, fall within the terms of the Privy Council judgement and could thus no longer be lawfully detained.

The issue of "non-nationals" was raised with the Vietnamese Government during the visit of FCO Minister Mr Jeremy Hanley to Hanoi on 9 April. The Vietnamese authorities agreed to study this problem again. We have also sought clarification on whether Taiwan would accept those released migrants who claimed to have Taiwanese papers, and a response is awaited.

Although we have already released all the migrants who came to our knowledge to date as falling within the terms of the Privy Council judgement, we are obliged to continue to release any new cases brought to our attention which fall under those terms. There is thus a risk of further releases.

Against the background that the Vietnamese authorities had to deal with over a hundred thousand cases from Asia and from Europe for repatriation, we do not believe that the hitherto apparently lengthy period for obtaining a response from the Vietnamese authorities should in general be treated as evidence of refusal or rejection by them. We thus propose in the Bill that where a request has been made to the Vietnamese Government for the repatriation of a Vietnamese migrant, the court shall not find that the purpose of his detention has failed, or become spent, until the request has been rejected by the Vietnamese Government, or unless the court finds that, in all the circumstances, the Vietnamese migrant has been detained for an unreasonable period. We also propose an additional, minor amendment which seeks to put beyond doubt the power to enable the released migrants to enter into recognizance.