The common law, that system of law followed by much of the English-speaking world traces its origins to England. To this day much of the world still looks to developments in English law for examples of the best ways to develop a society based on fairness and the rule of law. Much of southern Africa—a region that this blog is particularly focused on—is built on the English common law. However, given the unraveling UK government hostile environment policy, can English law still lay claim to the idea of fairness and the rule of law?
The scandal of UK immigration detention
The UK’s draconian immigration detention system is said to be one of the largest in Europe. Those detained for immigration offences (27,331 individuals in 2017 alone) are often held indefinitely with no legally prescribed time limits. The process is purely administrative—people are held in detention not because a court of law has decided so but simply because an immigration official has decided to detain them as their claims get processed. According to some estimates, the UK government loses around £76 million in detaining people who are eventually released with £21 million spent over the last five years compensating those with successful claims for unlawful detention.
Between April 2013 and March 2017, £523 million was spent on detaining people on immigration grounds with the longest period in detention lasting up to five years. Given that the detainees have not been convicted of crimes, the process is draconian and undermines English law’s claim to fairness.
This blog has reported on the highly prohibitive costs for migrants seeking British citizenship. The costs, in some cases amounting to nearly £10,000 over a five-year period mean that even documented migrants find it difficult to afford their status. Those who fail to renew their papers due to costs are caught in a catch-22. They can’t come clean as that would often result in the loss of jobs and deportation and yet they must continue to somehow earn a living and therefore often end up vulnerable to exploitation with limited means of earning the high costs of renewing their papers. Given that the UK’s own House of Lords has decried the exorbitant immigration fees, it is unfair for the government to continue to impose these on often low earning migrants. On paper, the government says these people are welcome and the law is on their side but in reality, the system is rigged to make it very difficult for them to enjoy their lawful entitlements.
The uncertainty of the hostile environment
The hostile environment has made people question the authenticity of their own legal status. Those who may be in the UK legally but have not obtained official documents such as passports or ID cards have faced threats of deportation and the loss of access to public services despite the existence of laws which prove their legal status.
That the government can create such an atmosphere where even the protection offered by the law is undermined is truly regrettable. What it does is question the very foundations of the rule of law as it affects certain people in the UK and reduces the force of law to the whims of the government of the day.
Impact on the common law world
The three examples above are not exhaustive but what they do show is a snapshot of how hostile government policy is undermining the protections offered by the law. This doesn’t help English law’s reputation as a haven of fairness and the rule of law.
If successive UK governments can frame policy in such a way as to blunt the protections offered by the law, what hope is there for strengthening fairness and the rule of law in less democratic jurisdictions across the common law world?
It is important at this point to state that there are many facets to English law and a crisis in immigration law doesn’t in itself undermine the influence of English law generally. However, this episode is especially poignant and personal as many of those being affected by the hostile environment come from parts of the world that look to English law for examples of fairness. How English law is seen to treat them will have a huge impact on it’s reputation for fairness and the influence of English common law.