Immigration Detention Policy, Part II

To what extent has the Immigration Detention Centre (IDC) at Aripo fulfilled its mandate? Recognising the continuing growth and influx of illegal immigrants to our shores, the former PNM administration embarked on a prudent and appropriate decision to build an IDC. This was to be in accord with international human rights instruments and treaties, promoting and fostering universal respect for human dignity, fundamental rights and freedoms, natural justice, and principles of administrative law. Then Minister of National Security Martin Joseph noted that “this development was to strengthen the nation’s capacity to detain illegal immigrants and other aliens subjected to deportation.” In addition, Joseph said that it “sought to implement corrective measures in considering the basic human rights of the detainees and to provide appropriate facilities as opposed to incarceration and imprisonment.”

 

 

Some of these international instruments include the Vienna Convention on Consular Relations (1963), the International Covenant on Civil and Political Rights (1966), and the Body of Principles for the Protection of Persons under Any Form of Detention and Imprisonment, adopted by the UN General Assembly Resolution 43/173 of December 1988. The establishment of the IDC was also in accordance with Section 16 of the Immigration Act Chapter 18:01 of the laws of T&T, which provides for the detention of persons at an “immigration station (place designated by the Minister of National Security for the examination, treatment or detention of person).” The detention of foreign nationals was initially intended to be a short-term measure, with the eventual objective of repatriating these illegal migrants to their homeland after due process. With these noble objectives in mind, the critical questions centre on the effective management of these operations. In its operations thus far, challenges such as lengthy delays in repatriation, riots, hunger strikes and detainees escaping have occurred. Why? Who are the people managing the IDC besides immigration officers? What has been their training and expertise with violators of immigration regulations rather than hardened criminals? Are they best equipped mentally, socially, culturally, as well as sensitive and mature to handle these detainees? Is the IDC monitored by any external agency? These questions are yet to be answered.

 

 

To gain a fuller appreciation of these operations, it may be useful to glean insights from the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Similar to our Constitution, there are certain principles enshrined that relate to the rules of natural justice, providing reasons for detention, right to be heard by a judicial or other authority, right to retain and instruct counsel without delay, right to an interpreter, right to contact consular officials of their own country without delay, and right to a detention review. Detaining foreign nationals and depriving them of their liberties, especially when they pose no danger to the public or national security, can cause psychological, emotional and traumatic effects on them their families. There is also the high cost of their daily upkeep. Would it not be prudent after a thorough examination, for a senior immigration officer (SIO) to release a detainee within 48 hours? If such a person is not released within that time and no examination, inquiry and removal effected within that period, reasons for continued detention should be reviewed and the person brought again before the senior immigration office within seven days after the lapse of 48 hours. There should be strong discretionary considerations in favour of release, if the person is not likely to pose a danger to public safety, or constitute a threat to national security as outlined in several sections of the Immigration Act. 

 

 

Where the SIO is also satisfied that the person is likely to appear for examination, inquiry or removal, he or she may order the person released, subject to terms and conditions deemed appropriate. Could not a few SIOs be selected, trained and assigned to aid in the backlog of these cases? Perhaps a good example of judicial reasoning is found in the case of Sahin v Canada. In this matter, the Federal Court ruled that persons cannot be held indefinitely under the provisions of the Immigration Act. The Federal Court set out a four-part test regarding detention. First, there must be a stronger case justifying longer detention for someone considered a danger to the public. Second, if the length of future detention cannot be ascertained, the facts would favour release. Third, who is responsible the delays, and finally, the availability of effective alternatives to detention such as outright release, bail bond periodic reporting, imposing conditions, order of supervision, deposit of money, or making third parties participate in a third-party risk-management programme? In sum, the Immigration Act is silent and vague in many ways when it comes to operational guidelines for detainees. There should be separate immigration manuals that govern detention and special inquiries.