Shaharyaar Shahardar is a 3rd Year Student at Gujarat National Law University, Gandhinagar.
On 9 November 2023, the High Court of Australia delivered a landmark judgment ruling against the indefinite detention of illegal migrants, some of whom would have been languishing in prison for decades. The decision reversed a 2004 verdict that had justified indefinite detention as long as the government intended to “reasonably” remove illegal immigrants. While this ruling signifies an effort by the Australian judiciary to establish a jurisprudence that considers the plight of migrants, it contrasts with more stringent laws introduced by other nations, raising concerns about the violation of human rights obligations.
Background of the NZYQ case
The case of NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs and Anr. centered on a stateless Rohingya refugee, identified as “NZYQ” (hereinafter “plaintiff”), facing potential lifelong detention.[i] Born in Myanmar, he arrived in Australia by boat as a teenager in 2012. Although the plaintiff was initially granted a temporary visa, it was revoked in 2015 following a criminal conviction, leading to imprisonment.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 deeming him“a danger to the community.” As an ethnic Rohingya, the plaintiff was denied citizenship under Myanmar’s 1982 Citizenship Law. Consequently, the plaintiff contested his detention before the Australian High Court. In their written submissions, the Australian government opposed overturning the 2004 judgment of Al-Kateb v. Godwin, which affirmed the legality of indefinite detention for illegal migrants.[ii] Despite 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.”[iii]
The High Court verdict: A step in the right direction?
Indefinite detention has been the fate of hundreds of thousands of illegal migrants worldwide, with limited legal discourse. The recent Australian High Court’s decision comes as a shower in a prolonged dry spell of sorts. The Australian government had detained hundreds of non-citizens for years, and this decision offers a pathway for their release from prolonged detention. While this decision is a positive step, other countries have introduced even more stringent laws favoring indefinite detentions that violate their human rights obligations.
In the United Kingdom (“UK”), for example, recent legislation extinguishes access to asylum for anyone arriving irregularly and grants sweeping new detention powers with limited judicial oversight.[iv] These powers lack a time limit, and while the UK government asserts it will align with existing immigration detention powers, the determination of a “reasonable time” is left to the executive’s discretion, potentially leading to misuse and abuse.[v]
Similarly, 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.[vi] 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.[vii] However, the Court did not try 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 failed to decide whether there were any constitutional limits to the duration of this detention.[viii] The US Supreme Court has constantly shied away from addressing the durationof such detentions.
Similarly, in India, the government has undertaken repressive measures to crack down against illegal immigrants across the country.[ix] 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.”[x] A critical inquiry raises a serious question concerning individuals who lack any recognized 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 a stateless individual.
Conclusion
Under international human rights law, immigration detention should be an exceptional measure of last resort, not a punishment.[xi] The laws that empower the government to indefinitely detain individuals, especially concerning countries like the UK, and the US violate their international obligations of adhering to the basic principle of human rights under conventions such as Universal Declaration of Human Rights (UDHR), International Covenant for Civil and Political Rights (ICCPR), and United Nations Convention Against Torture (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 scrutinize 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.
[i] NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs & Anr [2023] HCA 37.
[ii] Al-Kateb v. Godwin [2004] HCA 37.
[iii] See Supra note 1 at para. 2.
[iv] Illegal Migration Act, 2023, Ch. 37, Acts of Parliament [UK].
[v] Policy Paper, Illegal Migration Bill: Detention and Bail Factsheet, Government of United Kingdom [2023].
[vi] 138 S. Ct. 830.
[vii] 142 S. Ct. 1827.
[viii] 538 U.S. [2003].
[ix] Rohingiya Families in Kashmir Fear Separation as India Cracks Down, Al Jazeera [20 June 2022]. <https://www.aljazeera.com/news/2022/6/20/rohingya-families-in-kashmir-fear-separation-as-india-cracks-dow>
[x] Press Release, Issues Related to Rohingya Muslims, Ministry of Home Affairs [28 July 2021].
[xi] UN Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/22/44.
