Two years is still too long

Two years ago today, Thomas Yadegary was arrested as an overstayer by the Immigration Service, and taken to Mount Eden Prison. He has been there ever since. He has not been charged or convicted of any crime. Instead, he is being held awaiting deportation after failing to win refugee status. As Yadegary fears for his life and has refused to sign an application for an Iranian passport, that deportation has not happened. Instead, he has been held without charge or trial for two years.

There are important differences from the case of Ahmed Zaoui. Zaoui was granted refugee status, Yadegary was refused it. Zaoui was held on the basis that he was a "security risk", Yadegary in an effort to coerce him into leaving. At the same time, the fundamental problem is the same: we have held a man without charge or trial for two years, and we show every sign of keeping him there forever. And this is an affront to our deepest values. In the 13th Century, the Magna Carta - the founding document of our democratic system - limited the King's powers of imprisonment, declaring that

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

The importance of this clause can be seen by the fact that it is the sole part of the Magna Carta surviving in New Zealand law. Since then, we've signed up to similar provisions against arbitrary detention in international human rights instruments and our own Bill of Rights Act.

Some would argue that the detention is not arbitrary. The government had good reason to initially detain Yadegary, and he is in prison by his own refusal to be deported. However, it is clear that he will not sign the required paperwork permitting deportation, meaning his detention is effectively indefinite. And there is clear precedent from the Zaoui case that this may render his detention arbitrary. According to Andrew and Petra Butler's The New Zealand Bill of Rights Act,

In Zaoui v Attorney-General [Habeas Corpus] all three members of the Court of Appeal accepted that an initially lawful immigration detention could become arbitrary for the purposes of s 22 of BORA (and hence unlawful so as to permit the granting of habeas corpus) if the purpose of detention could not be fulfilled and, as a result, the detainee would otherwise face indefinite or permanent detention if not released.

(Emphasis and link to judgement added. See particularly paragraphs 88, 90, 175, 222, and 267)

In Zaoui's case, the Court held that that condition had not yet been met, as the review of the Security Risk Certificate would provide an end to detention (however, they also put the government on notice that their patience was wearing thin). In Yadegary's case, it seems more likely that it will be. There is no review of his detention scheduled, and no end, unless he agrees to sign what is effectively his own death warrant. And that shows no sign of happening.

The question then is "how long is too long"? How long are we willing to imprison without charge simply to prove a point and show we're hard? I'm not sure of the exact time limit, but I am sure of one thing: two years is (still) too long.