TNAG-2323-FCO40-3367-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 141

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Reference..

This section lays down no time limits; the power to detain is therefore, on the face of it, already indefinite. However, it could reasonably be read as conditional on, in the case of (i), the screening process actually being pursued, or, in the case of (ii), removal proceedings actually being pending, or at least some kind of action being taken towards securing removal. (In other words, a kind of "due diligence" or "proper purpose" requirement might be applied to either type of case.) At present, VBP in category (i) are detained on average for 2 years and VBP in category (ii) indefinitely.

Compatibility of present practice and legislation with the

ICCPR

3. HKG have suggested (in para 3 of Tel No.98) that, unless the UK's reservation concerning immigration legislation applies, the present practice may be putting HMG in breach of the ICCPR. If this is correct, the practice, and perhaps the legislation may also be at risk of challenge under the BOR after the freeze period.

On

4.

Article 9(1) and (4) are the ICCPR provisions most in point, though others may need to be considered as well. a literal reading of Article 9(1), detention which is clearly authorised by domestic law would not necessarily involve any breach, and on a literal reading of Article 9(4), the availability of habeas corpus proceedings would be adequate. However, I would think that either a court or the Human Rights Committee could read into the Article 9(1) requirement of legality an obligation for the Government to show that the detention is (and has been throughout) for the purpose authorised by the domestic legislation. In other words, even if the courts did not read Section 13D as subject to "due diligence" and "proper purpose" as a matter of ordinary statutory interpretation, they might well do so as a result of a BOR challenge.

5. I have not so far found any HRC jurisprudence on this point, though research on this is still under way.

HKG may find it helpful to know of relevant case law under the European Convention on Human Rights. Though the wording of Article 5 ECHR differs in some respects from Article 9 ICCPR, neither Article expressly requires that the "case" of the detainee be disposed of within a reasonable time except where the person is detained on a criminal charge. Nevertheless, the Commission and Court have read an obligation of "due diligence" into the requirement of legality for the whole of Article 5(1). One example is the

JBIAAN

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