Assessing Damage, Urging Action
• Detention pending deportation must be time-limited and cease
when deportation is not a realistic prospect; it should not be used
as a disguised form of administrative detention on discriminatory
grounds;
• The principle of non-refoulement must be fully respected;
• “Diplomatic assurances” cannot discharge a State from its duties
under the principle of non-refoulement;
• Remedies should be provided to allow individuals to appeal detention
prior to deportation, and decisions on deportation, before a civilian
judicial authority.
This latter point is particularly important. At present, there is no shared
international consensus that, in deportation, extradition or expulsion
proceedings, human rights law explicitly and necessarily requires a full fair
hearing before an independent tribunal. However, the Panel was left in no
doubt that, particularly when a deportation decision affects a long-term or
permanent resident, and where there is a serious risk of the deportee being
subjected to serious human rights violations upon return, only a hearing by
an independent judicial body, constitutes an acceptable process. Such an
appeal should have a suspensive effect, particularly where irreparable harm
is at stake.
The root problem here is that, for some countries, immigration law has now
moved centre-stage in their counter-terrorism strategies; the law was not
designed with that in mind. States need to re-visit this situation.
b. Administrative detention
Administrative detention has often given rise in the past to serious human
rights violations; yet, the Panel felt that much of the learning from the past
have been ignored. There is a real risk of continuing human rights violations
if the framework of settled international law continues to be set aside when
developing current counter-terrorist preventive strategies. It may be helpful
to make a clear exposition here of some of the basic tenets of international
law as they apply to administrative detention:
• any form of administrative detention must be limited to the most
exceptional circumstances, namely a bona fide state of emergency
threatening the life of the nation;
• even in a bona fide emergency, constituting a threat to the life of
the nation, and therefore allowing for exceptional measures, administrative detention must be subject to stringent safeguards and
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