CASE OF SAADI v. THE UNITED KINGDOM
(Application no. 13229/03)
11 July 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Saadi v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Mr J. Casadevall,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L.. Early, Section Registrar,
Having deliberated in private on 20 June 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
“Reason for Detention
I have decided that you should be detained because I am satisfied that your application may be decided quickly using the fast track procedures established at Oakington Reception Centre. In reaching this decision I have taken into account that, on initial consideration, it appears that your application may be one which can be decided quickly”.
“The form [in use at the time] clearly indicated that detention was only used where there was no reasonable alternative. All the reasons and factors reflect some possible misconduct by the detainee or the need for him to be cared for by detention ...it was wholly inappropriate for Oakington detention and it is, for example, difficult to follow what reason could conceivably have been close to fitting [the applicant’s] case. Unfortunately, the copy of the [form] which should have been retained on the file has disappeared and so I do not know, nor does [the applicant] why it was said that he should be detained.”
“The need for highly structured and tightly managed arrangements, which would be disrupted by late or non-attendance of the applicant for interview, is apparent. On the other side applicants not living at Oakington, but living where they chose, would inevitably suffer considerable inconvenience if they had to be available at short notice and continuously in order to answer questions.... Getting a speedy decision is in the interest not only of the applicants but of those increasingly in the queue.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- any case which did not appear to be one in which a quick decision could be reached or in which there were complicating factors;
- unaccompanied minor asylum seekers;
- cases in which there was a dispute as to age;
- disabled applicants;
- persons with special medical needs;
- cases involving disputes as to nationality; and
- cases where the asylum seeker was violent or uncooperative.
“All of the normal facilities provided within an immigration detention centre are available – restaurant, medical centre, social visits room, religious observance and recreation. The practical operation and facilities at Oakington are, however, very different from other detention centres. In particular, there is a relaxed regime with minimal physical security, reflecting the fact that the purpose is to consider and decide applications. The site itself is very open with a large area for outdoor recreation and general association or personal space. Applicants and their dependents are free to move about the site although, in the interests of privacy and safety, there are two areas where only females and families may go.”
I . ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
24. The applicant contended that his detention at the Oakington Reception Centre from 2 to 9 January 2001 was not compatible with Article 5 § 1 of the Convention. That provision reads, so far as relevant, as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
A. The parties’ submissions
1. The Government
2. The applicant
B. The Court’s assessment
1. General principles of detention under Article 5 § 1 (f)
“... it is not in dispute that Mr Chahal has been detained with a ‘view to deportation’ within the meaning of Article 5 § 1 (f) (...). Article 5 § 1 (f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c).
Indeed, all that is required under this provision is that ‘action is being taken with a view to deportation’. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law”
The Court then noted (at § 113) that any such deprivation of liberty was justified under Article 5 § 1 (f) only for as long as deportation proceedings were in progress. If the proceedings were not prosecuted with due diligence, the detention would cease to be permissible under the provision. The Court further examined whether the detention was “lawful” for the purposes of Article 5 § 1 (f) with particular reference to the safeguards provided by the national system (§ 118).
“Where the "lawfulness" of detention is in issue, including the question whether ‘a procedure prescribed by law’ has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see, among many other authorities, the Kemmache v. France (no. 3) judgment of 24 November 1994, Series A no. 296-C, pp. 19-20,§ 42).
In laying down that any deprivation of liberty must be effected ‘in accordance with a procedure prescribed by law’, Article 5 § 1 primarily requires any arrest or detention to have a legal basis in domestic law. ...”
2. Application of the general principles
II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
A. The parties’ submissions
1. The Government
2. The applicant
B. The Court’s assessment
51. Article 5 § 2 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees ﬁt, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4. Whilst this information must be conveyed ‘promptly’, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Bordovskiy v. Russia, no. 49491/99, §§ 55, 56, 8 February 2005; Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, § 40). When a person is arrested on suspicion of having committed a crime, Article 5 § 2 neither requires that the necessary information be given in a particular form, nor that it consists of a complete list of the charges held against the arrested person (see X v. Germany, no. 8098/77, Commission decision of 13 December 1978, DR 16, p. 111). When a person is arrested with a view to extradition, the information given may be even less complete (see K. v. Belgium, no. 10819/84, Commission decision of 5 July 1984, DR 38, p. 230).
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
The Court has dealt with the substance of this complaint in its determination of the issues under Article 5 § 1 (f) of the Convention, and holds that it is not necessary to consider it separately under Article 14.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that finding a violation of Article 5 § 2 of the Convention constitutes sufficient just satisfaction for non-pecuniary damage;
(b) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros) for costs and expenses, plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 11 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Sir Nicolas Bratza;
(b) joint dissenting opinion of Mr Casadevall, Mr Traja and Mr Sikuta.
CONCURRING OPINION OF JUDGE SIR NICOLAS BRATZA
I am in agreement with the majority of the Chamber on all aspects of the case and only add a few words of my own on the complaint under Article 5 § 1 (f) because of the importance of the question raised.
At the heart of the applicant’s case is the claim that to detain a person who presented no threat to immigration control for the sole purpose of facilitating an early decision concerning his entry into the United Kingdom did not serve “to prevent his effecting an unauthorised entry into the country” and was not thus compatible with Article 5 § 1 (f). That the applicant himself presented no such threat was, it is argued, amply demonstrated by the facts of the present case: the applicant had not been detained immediately on arrival in the United Kingdom but had been granted temporary admission to the country during which he had fully complied with the reporting requirements and had given no indication of any intention to abscond or otherwise to effect an unauthorised entry into the country. The fact that his detention was not intended to prevent his unauthorised entry was further confirmed by the fact that, once the decision had been taken formally to refuse him leave to enter the United Kingdom, the applicant was immediately released.
I readily accept that Dr Saadi had no intention to effect an unauthorised entry into the United Kingdom but that, on the contrary, his conduct throughout was consistent only with his intention to effect an authorised lawful entry into the country. However, I consider that to interpret Article 5 § 1 (f) as only permitting detention of a person who is shown to be seeking to effect an unauthorised entry is to place too narrow a construction on the terms of the provision. In this respect, I share the opinion of the House of Lords that, until a State has “authorised” entry, the entry is unauthorised and the State has in principle power to detain under the first limb of Article 5 § 1 (f) until the application has been considered and authorisation has been granted or refused. While the applicant was granted temporary admission on his arrival in the United Kingdom, this did not, by virtue of section 11 of the 1971 Act, constitute the authorisation of entry into the country.
Again, like the House of Lords, I do not consider that on the true construction of Article 5 § 1 (f) it is a precondition of the power to detain that detention should be “necessary” to prevent an unauthorised entry, in the sense that the use of less severe measures would not suffice either to prevent unauthorised entry or to allow a determination to be made as to whether an individual should be granted immigration clearance or asylum. As noted in the judgment, in the case of Chahal, the Court expressly rejected the contention that the second limb of Article 5 § 1 (f) demanded that the detention of a person against whom action was being taken with a view to deportation should reasonably be considered necessary to prevent the
applicant from committing an offence or fleeing and that in this respect Article 5 § 1 (f) provided a different level of protection from Article 5 § 1 (c). This interpretation was reaffirmed in the Čonka case. While it is true that the first limb of the sub-paragraph (“to prevent his effecting an unauthorised entry”) and the second limb (“against whom action is being taken with a view to deportation”) are not framed in identical terms, I can find no valid reason for confining the Court’s reasoning to the second limb of the sub-paragraph or for holding that a different and stricter test should be applied to the first limb.
Although for these reasons I consider that the detention of the applicant fell within the provisions of Article 5 § 1 (f), I recognise the concern felt that a person should be deprived of his liberty for reasons essentially of administrative efficiency and the risks of arbitrariness which such detention may entail. As has frequently been emphasised in the Court’s case-law, any deprivation of liberty must be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness. In the context of detention at the Oakington Centre, this requires not only that the detention of an immigrant lasts for no longer than is required to complete the procedures for deciding whether to grant entry but that the period of detention should be short. The detention in the present case lasted for a total of 7 days, which the majority has found not to be excessive. While I can agree that the period of the applicant’s detention at Oakington was within the limits of what could be regarded as acceptable, any period of detention significantly in excess of this period would in my view not be compatible with the first limb of Article 5 § 1 (f).
JOINT DISSENTING OPINION OF JUDGES CASADEVALL, TRAJA AND SIKUTA
from a few days to several years. The possibility of detaining an asylum seeker at any time during the asylum procedure on the ground that it was to “prevent his effecting an unauthorised entry into the country” would represent great legal uncertainty for the person concerned. States which are parties to international instruments dealing with the legal status of asylum seekers and refugees (e.g. the 1951 UN Convention relating to the Status of Refugees, but also instruments in other systems, e.g. the European Union and the Council of Europe) are obliged to grant an asylum seeker admission to the territory (but not a residence permit) until the final decision in the asylum procedure is taken. This also happened in the instant case, where the respondent Government admitted the applicant to the territory. Paradoxically, as indicated in paragraph 45 of the judgment, the applicant was detained for seven days, and was then released from detention after his asylum claim had been refused.