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SAADI v. THE UNITED KINGDOM - 13229/03 [2008] ECHR 80 (29 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/80.html
Cite as:
(2008) 47 EHRR 17,
[2008] ECHR 80,
[2008] INLR 436,
[2008] Imm AR 368,
47 EHRR 17
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GRAND
CHAMBER
CASE OF
SAADI v. THE UNITED KINGDOM
(Application
no. 13229/03)
JUDGMENT
STRASBOURG
29 January
2008
This judgment is
final but may be subject to editorial revision.
In the case of Saadi v. the United Kingdom,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul Costa, President,
Christos
Rozakis,
Nicolas Bratza,
Boštjan M. Zupančič,
Peer
Lorenzen,
Françoise Tulkens,
Nina Vajić,
Margarita
Tsatsa-Nikolovska,
Snejana Botoucharova,
Anatoly
Kovler,
Elisabeth Steiner,
Lech Garlicki,
Khanlar
Hajiyev,
Dean Spielmann,
Ineta
Ziemele,
Isabelle
Berro-Lefèvre,
Päivi
Hirvelä, judges,
and Michael O'Boyle,
Deputy Registrar.
Having
deliberated in private on 16 May and 5 December 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 13229/03) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by an Iraqi
national, Mr Shayan Baram Saadi (“the applicant”), on 18
April 2003.
The
applicant was represented by Messrs Wilson & Co., solicitors
practising in London. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr J. Grainger,
Foreign and Commonwealth Office.
The
applicant alleged that he had been detained in breach of Articles 5 §
1 and 14 of the Convention, and that he had not been given adequate
reasons for the detention, contrary to Article 5 § 2.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 27 September 2005 it was
declared admissible by a Chamber of that Section composed of the
following judges: Mr J. Casadevall, Sir Nicolas Bratza, Mr M.
Pellonpää, Mr R. Maruste, Mr K. Traja, Ms L. Mijović,
Mr J. Šikuta and also of Ms F. Elens-Passos, Deputy Section
Registrar. On 11 July 2006 a Chamber composed of the same judges,
together with Mr T.L. Early, Section Registrar, delivered a judgment
in which it held, by four votes to three, that there had been no
violation of Article 5 § 1 and, unanimously, that there had been
a violation of Article 5 § 2. The Chamber further held,
unanimously, that it was not necessary to consider Article 14
separately, that the finding of a violation of Article 5 § 2 was
sufficient just satisfaction for non-pecuniary damage, and that the
respondent State should pay the applicant EUR 1,500, plus any tax
that might be chargeable, for costs and expenses.
On
11 December 2006, pursuant to a request by the applicant, the Panel
of the Grand Chamber decided to refer the case to the Grand Chamber
in accordance with Article 43 of the Convention.
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
The
applicant and the Government each filed written observations on the
merits. In addition, third-party comments were received jointly from
the Centre for Advice on Individual Rights in Europe (“AIRE
Centre”), the European Council on Refugees and Exiles (“ECRE”)
and Liberty and from the United Nations High Commissioner for
Refugees (“UNHCR”), which had been given leave by the
President to intervene in the written procedure (Article 36 § 2
of the Convention and Rule 44 § 2).
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 16 May 2007 (Rule 59 § 3).
There appeared before the Court:
(a) for
the Government
Mr
J. Grainger, Agent,
Mr
D. Pannick QC, Counsel,
Mr
M. Fordham QC, Counsel,
Ms
N. Samuel,
Mr
S. Barrett, Advisers.
(b) for
the applicant
Mr
R. Scannell,
Mr
D. Seddon, Counsel,
Mr
M. Hanley,
Ms S. Ghelani, Advisers.
The
Court heard addresses by Mr Scannell and Mr Pannick, as well as their
answers to questions put by Judges Costa and Spielmann.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, an Iraqi Kurd, was born in 1976 and now
lives and works as a doctor in London.
A. The applicant's temporary admission to the United Kingdom
In
December 2000 the applicant fled the Kurdish Autonomous Region of
Iraq when, in the course of his duties as a hospital doctor, he
treated and facilitated the escape of three fellow members of the
Iraqi Workers' Communist Party who had been injured in an attack. He
arrived at Heathrow airport on 30 December 2000 and immediately
claimed asylum.
The
immigration officer contacted the Oakington Reception Centre
(“Oakington”: see paragraphs 23-25 below), but there was
no immediate room there, so the applicant was granted “temporary
admission” (see paragraphs 20-21 below) to stay at the hotel of
his choice and return to the airport the following morning. On 31
December 2000 he reported as required and was again granted temporary
admission until the following day. When the applicant again reported
as required he was, for the third time, granted temporary admission,
until the following day, 2 January 2001 at 10.00 a.m.
B. Detention at Oakington and the asylum proceedings
On
this last occasion, when the applicant reported as required, he was
detained and transferred to Oakington.
When
being taken into detention, the applicant was handed a standard form,
“Reasons for Detention and Bail Rights”, indicating that
detention was used only where there was no reasonable alternative,
and setting out a list of reasons such as risk of absconding, with
boxes to be ticked by the immigration officer where appropriate. The
form did not include an option indicating the possibility of
detention for fast-track processing at Oakington.
On
4 January 2001 the applicant met at Oakington with a lawyer from the
Refugee Legal Centre, who contacted the Home Office to enquire why
the applicant was being detained and to request his release. On
5 January 2001, when the applicant had been detained for 76
hours, the lawyer was informed over the telephone by an immigration
officer that the applicant was being detained because he was an Iraqi
who fulfilled the Oakington criteria. The lawyer then wrote to the
Home Office requesting the applicant's release on the ground that it
was unlawful. When refused, the applicant applied for judicial review
of the decision to detain him, claiming it was contrary to domestic
law and Article 5 §§ 1 and 2 of the Convention.
The
applicant's asylum claim was initially refused on 8 January. The
following day he was released from Oakington and again granted
temporary admission pending the determination of his appeal. On 14
January 2003 his appeal was allowed and he was granted asylum.
C. The judicial review proceedings
In
the proceedings for judicial review of the decision to detain the
applicant, Collins J on 7 September 2001 (R. (on the application
of Saadi and others) v. Secretary of State for the Home Department
[2001] EWHC Admin 670) found that the Secretary of State had such
a power to detain under the Immigration Act 1971 (see paragraph 19
below). However, relying on the Court's judgment in Amuur v.
France, (judgment of 25 June 1996, Reports of Judgments and
Decisions 1996-III, § 43), and what he considered to be a
“sensible reading” of Article 5 § 1(f), he found
that it was not permissible under the Convention to detain, solely
for purposes of administrative efficiency, an asylum seeker who had
followed the proper procedures and presented no risk of absconding.
Even if the detention did fall within Article 5 § 1(f), it was
disproportionate to detain asylum seekers for the purpose of quickly
processing their claims, since it had not been demonstrated that
stringent conditions of residence, falling short of 24-hour
detention, might not suffice. He also found (as did the Court of
Appeal and House of Lords) that the applicant had not been given
adequate reasons for his detention.
On
19 October 2001 the Court of Appeal unanimously overturned this
judgment ([2001] EWCA Civ 1512). Lord Phillips of Worth Matravers MR,
who gave the lead judgment, first considered whether the policy of
detaining asylum seekers for fast-track processing at Oakington was
irrational, such as to render it unlawful under domestic law. He
observed that over recent years applications for asylum to the United
Kingdom and other countries had been escalating. In the United
Kingdom the average monthly number of applications from July to
September 1999 was nearly 7,000; 60% higher than the previous year.
Coping with huge numbers of asylum seekers posed heavy administrative
problems, and it was in the interests of all asylum seekers to have
their status determined as quickly as possible. He continued:
“We share the doubts expressed by Collins J as to
whether detention is really necessary to ensure effective and speedy
processing of asylum applications. But in expressing these doubts we
... are indulging in assumption and speculation. It is not in doubt
that, if asylum applications are to be processed within the space of
seven days, the applicants are necessarily going to have to be
subjected to severe restraints on their liberty. In one way or
another they will be required to be present in a centre at all times
when they may be needed for interviews, which it is impossible to
schedule to a pre-determined timetable. Would applicants voluntarily
submit to such a regime, if not detained? Many no doubt would, but it
is impossible to condemn as irrational the policy of subjecting those
asylum seekers whose applications appear susceptible to rapid
resolution to a short period of detention designed to ensure that the
regime operates without dislocation.
This is not a conclusion that we have reached easily.
Asylum seekers are detained at Oakington only if it seems likely that
their applications can be resolved within a week. But they must also
be persons who are not expected to attempt to abscond or otherwise
misbehave. At first blush it seems extreme to detain those who are
unlikely to run away simply to make it easier to process their
claims. But the statistics that we have set out at the start of our
judgment cannot be ignored. As [the Home Office minister] observed in
debate in the House of Lords on 2 November 1999, faced with
applications for asylum at the rate of nearly 7,000 per month, 'no
responsible government can simply shrug their shoulders and do
nothing' ... . A short period of detention is not an unreasonable
price to pay in order to ensure the speedy resolution of the claims
of a substantial proportion of this influx. In the circumstances such
detention can properly be described as a measure of last resort. ...”
The
Court of Appeal next considered whether the detention fell within the
first limb of Article 5 § 1(f), and held that the right to
liberty in Article 5 § 1(f) was intended to preserve the
sovereign power of Member States to decide whether to allow aliens to
enter their territories on any terms whatsoever and that detention of
an alien would be covered by the sub-paragraph unless and until entry
was authorised, subject to the proviso, derived from Chahal v. the
United Kingdom (judgment of 15 November 1996, Reports 1996-V)
that the asylum or deportation procedure should not be prolonged
unreasonably.
On
31 October 2002 the House of Lords unanimously dismissed the
applicant's appeal ([2002] UKHL 41). Having taken note of evidence
that the applications of approximately 13,000 asylum seekers a year
were processed at Oakington, which entailed scheduling up to 150
interviews a day, Lord Slynn of Hadley, with whom the other Law Lords
agreed, held as follows:
“In international law the principle has long been
established that sovereign states can regulate the entry of aliens
into their territory. ...
This principle still applies subject to any treaty
obligation of a state or rule of the state's domestic law which may
apply to the exercise of that control. The starting point is thus in
my view that the United Kingdom has the right to control the entry
and continued presence of aliens in its territory. Article 5 §
1(f) seems to be based on that assumption. The question is therefore
whether the provisions of para. 1(f) so control the exercise of that
right that detention for the reasons and in the manner provided for
in relation to Oakington is in contravention of the Article so as to
make the detention unlawful.
In my view it is clear that detention to achieve a quick
process of decision-making for asylum seekers is not of itself
necessarily and in all cases unlawful. What is said however is that
detention to achieve speedy process 'for administrative convenience'
is not within para. 1(f). There must be some other factor which
justifies the exercise of the power to detain such as the likelihood
of the applicant absconding, committing a crime or acting in ways not
conducive to the public good. ...
It is ... to be remembered that the power to detain is
to 'prevent' unauthorised entry. In my opinion until the State has
'authorised' entry the entry is unauthorised. The State has power to
detain without violating Article 5 until the application has been
considered and the entry 'authorised'. ...
There remains the issue whether, even if detention to
achieve speedy asylum decision-making does fall within Article 5 §
1(f), 'detention was unlawful on grounds of being a disproportionate
response to the reasonable requirements of immigration control'. ...
The need for highly structured and tightly managed
arrangements, which would be disrupted by late[ness] 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.
It is regrettable that anyone should be deprived of his
liberty other than pursuant to the order of a court but there are
situations where such a course is justified. In a situation like the
present with huge numbers and difficult decisions involved, with the
risk of long delays to applicants seeking to come, a balancing
exercise has to be performed. Getting a speedy decision is in the
interests not only of the applicants but of those increasingly in the
queue. Accepting as I do that the arrangements made at Oakington
provide reasonable conditions, both for individuals and families and
that the period taken is not in any sense excessive, I consider that
the balance is in favour of recognising that detention under the
Oakington procedure is proportionate and reasonable. Far from being
arbitrary, it seems to me that the Secretary of State has done all
that he could be expected to do to palliate the deprivation of
liberty of the many applicants for asylum here.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Immigration Act 1971
1. Detention
The
Immigration Act 1971 (“the 1971 Act”), Schedule 2,
paragraph 2, entitles an immigration officer to examine any
person arriving in the United Kingdom to determine whether he or she
should be given leave to enter. Paragraph 16(1) provides:
“A person who may be required to submit to
examination under paragraph 2 above may be detained under the
authority of an immigration officer pending his examination and
pending a decision to give or refuse him leave to enter.”
Paragraphs
8, 9 and 10 enable an immigration officer to remove those refused
leave to enter or illegal entrants and paragraph 16(2) (as
substituted by the Immigration and Asylum Act 1999: “the 1999
Act”) provides:
“If there are reasonable grounds for suspecting
that a person is someone in respect of whom directions may be given
under any of paragraphs 8 to 10 ... that person may be detained under
the authority of an immigration officer pending – (a) a
decision whether or not to give such directions; (b) his removal in
pursuance of such directions.”
2. Temporary admission
Paragraph
21(1) of Schedule 2 to the 1971 Act enables an immigration officer to
grant temporary admission to the United Kingdom to any person liable
to be detained. Paragraph 21(2) (as amended by the 1999 Act)
provides:
“So long as a person is at large in the United
Kingdom by virtue of this paragraph, he shall be subject to such
restrictions as to residence, as to his employment or occupation and
as to reporting to the police or an immigration officer as may from
time to time be notified to him in writing by an immigration
officer.”
Sub-paragraphs
2(A) to 2(E) give powers to the Secretary of State to make
regulations placing residence restrictions on persons granted
temporary admission.
Section
11 of the 1971 Act provides as follows:
“A person arriving in the United Kingdom by ship
or aircraft shall for purposes of this Act be deemed not to enter the
United Kingdom unless and until he disembarks, and on disembarkation
at a port shall further be deemed not to enter the United Kingdom so
long as he remains in such area (if any) at the port as may be
approved for this purpose by an immigration officer; and a person who
has not otherwise entered the United Kingdom shall be deemed not to
do so as long as he is detained, or temporarily admitted or released
while liable to detention ...”
In
Szoma (FC) v. Secretary of State for the Department of Work and
Pensions [2005] UKHL 64, the House of Lords held that the purpose
of section 11 of the 1971 Act was to exclude a person temporarily
admitted from the rights available to those granted leave to enter,
in particular the right to seek an extension of leave to remain, but
that an alien granted temporary admission was nonetheless “lawfully
present” in the United Kingdom for the purposes of social
security entitlement.
B. Pre-Oakington policy on detention and temporary
admission
Before
March 2000, when the opening of Oakington was announced (see
paragraph 23 below), the Home Office policy on the use of detention
was set out in a White Paper (policy paper) published in 1998
entitled “Fairer, Faster and Firmer – A Modern Approach
to Immigration and Asylum” (Cm 4018) in these terms (paragraph
12.3):
“The Government has decided that, whilst there is
a presumption in favour of temporary admission or release, detention
is normally justified in the following circumstances:
• where there is a reasonable belief that the
individual will fail to keep the terms of temporary admission or
temporary release;
• initially, to clarify a person's identity and the
basis of their claim;
• where removal is imminent. In particular, where
there is a systematic attempt to breach the immigration control,
detention is justified wherever one or more of those criteria is
satisfied.”
In
paragraph 12.11 of the White Paper it was made clear that detention
should be used for the shortest possible time and paragraph 12.7
required written reasons to be given at the time of detention.
C. The Oakington Reception Centre
On
16 March 2000 the Minister, Barbara Roche MP, announced a change of
the above policy in a written answer to a Parliamentary question, as
follows:
“Oakington Reception Centre will strengthen our
ability to deal quickly with asylum applications, many of which prove
to be unfounded. In addition to the existing detention criteria,
applicants will be detained at Oakington where it appears that their
applications can be decided quickly, including those which may be
certified as manifestly unfounded. Oakington will consider
applications from adults and families with children, for whom
separate accommodation is being provided, but not from unaccompanied
minors. Detention will initially be for a period of about seven days
to enable applicants to be interviewed and an initial decision to be
made. Legal advice will be available on site. If the claim cannot be
decided in that period, the applicant will be granted temporary
admission or, if necessary in line with existing criteria, moved to
another place of detention. If the claim is refused, a decision about
further detention will similarly be made in accordance with existing
criteria. Thus, detention in this latter category of cases will
normally be to effect removal or where it has become apparent that
the person will fail to keep in contact with the Immigration
Service.”
The
decision whether an asylum claim is suitable for decision at
Oakington is primarily based on the claimant's nationality. According
to the Home “Operational Enforcement Manual”, detention
at Oakington should not be used for inter alia “any case
which does not appear to be one in which a quick decision can be
reached”; minors; disabled applicants; torture victims; “any
person who gives reason to believe that they might not be suitable
for the relaxed Oakington regime, including those who are considered
likely to abscond”.
The
detention centre is situated in former army barracks near Oakington,
Cambridgeshire. It has high perimeter fences, locked gates and
twenty-four-hour security guards. The site is large, with space for
outdoor recreation and general association and on-site legal advice
is available. There is a canteen, a library, a medical centre, a
social visits room and a religious observance room. Applicants and
their dependents are generally free to move about the site, but must
eat and return to their rooms at fixed times. Male applicants are
accommodated separately from women and children and cannot stay with
their families overnight. Detainees must open their correspondence in
front of the security guards and produce identification if requested,
comply with roll-calls and other orders.
III. RELEVANT
INTERNATIONAL LAW DOCUMENTS
A. International
treaties, declarations, conclusions, guidelines and reports
1. Vienna Convention on the Law of Treaties (1969)
The
Vienna Convention on the Law of Treaties, which entered into force on
27 January 1980, provides in Article 31:
“General rule of interpretation
1. A treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object
and purpose.
2. The context for the purpose of the
interpretation of a treaty shall comprise, in addition to the text,
including its preamble and annexes:
(a) any agreement relating to the treaty which was made
between all the parties in connection with the conclusion of the
treaty;
(b) any instrument which was made by one or more parties
in connection with the conclusion of the treaty and accepted by the
other parties as an instrument related to the treaty.
3. There shall be taken into account,
together with the context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the application of its
provisions;
(b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties regarding its
interpretation;
(c) any relevant rules of international law applicable
in the relations between the parties.
4. A special meaning shall be given to a term
if it is established that the parties so intended.”
Article
32 provides:
Supplementary means of interpretation
“Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning
resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
unreasonable.”
Article
33 provides:
Interpretation of treaties authenticated in two or
more languages
“1. When a treaty has been
authenticated in two or more languages, the text is equally
authoritative in each language, unless the treaty provides or the
parties agree that, in case of divergence, a particular text shall
prevail.
...
3. The terms of the treaty are presumed to
have the same meaning in each authentic text.
4. Except where a particular text prevails in
accordance with paragraph 1, when a comparison of the authentic texts
discloses a difference of meaning which the application of articles
31 and 32 does not remove, the meaning which best reconciles the
texts, having regard to the object and purpose of the treaty, shall
be adopted.”
2. Universal Declaration of Human Rights (“UDHR”)
The
UDHR provides in Article 3 for the right to life, liberty and
security; in Article 9 for the right not to be arbitrarily arrested,
detained or exiled; and in Article 13 for the right to freedom of
movement and residence.
In
Article 14(1) it declares that “everyone” has the
fundamental right “to seek and to enjoy in other countries
asylum from persecution”.
3. International Covenant on Civil and Political Rights (“ICCPR”)
Article
9(1) of the ICCPR provides:
“Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or detention.
No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.”
In
its case-law on this Article, the UN Human Rights Committee (“HCR”)
has held, inter alia, that the failure by the immigration
authorities to consider factors particular to the individual, such as
the likelihood of absconding or lack of co-operation with the
immigration authorities, and to examine the availability of other,
less intrusive means of achieving the same ends, might render the
detention of an asylum seeker arbitrary (A. v. Australia, no.
560/1993, CCPR/C/59/D/560/1993; C. v. Australia, no.
900/ 1999, CCPR/C/76/D/900/1999). In A. v. Australia the
HCR observed that:
“the notion of 'arbitrariness' must not be equated
with 'against the law' but be interpreted more broadly to include
such elements as inappropriateness and injustice. Furthermore, remand
in custody could be considered arbitrary if it is not necessary in
all the circumstances of the case, for example to prevent flight or
interference with evidence: the element of proportionality becomes
relevant in this context.”
Article
12 of the ICCPR protects the right of freedom of movement to those
“lawfully within the territory”. Under the case-law of
the HCR, a person who has duly presented an application for asylum is
considered to be “lawfully within the territory” (Celepi
v. Sweden, CCPR/C/51/D/456/1991).
4. Convention relating to the Status of Refugees
(Geneva, 1951: “Refugee Convention”)
The
Refugee Convention, which entered into force on 22 April 1954,
together with its 1967 Protocol, generally prohibits Contracting
States from expelling or returning a person with a well-founded fear
of persecution to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion (Articles 1 and 33). Under Article 31:
“Refugees unlawfully in the country of refuge
1. The Contracting States shall not impose penalties, on
account of their illegal entry or presence, on refugees who, coming
directly from a territory where their life or freedom in was
threatened in the sense of article 1, enter or are present in their
territory without authorization, provided they present themselves
without delay to the authorities and show good cause for their
illegal entry or presence.
2. The Contracting States shall not apply to the
movements of such refugees restrictions other than those which are
necessary and such restrictions shall only be applied until their
status in the country is regularized or they obtain admission into
another country. The Contracting States shall allow such refugees a
reasonable period and all the necessary facilities to obtain
admission into another country.”
On
13 October 1986, the Executive Committee of the United Nations High
Commissioner for Refugees' Programme adopted the following Conclusion
relating to the detention of asylum seekers (No. 44 (XXXVII) –
1986). The Conclusion was expressly approved by the General Assembly
on 4 December 1986 (Resolution 41/124) and reads as follows:
“The Executive Committee,
Recalling Article 31 of the 1951 Convention relating to
the Status of Refugees.
Recalling further its Conclusion No. 22 (XXXII) on the
treatment of asylum-seekers in situations of large-scale influx, as
well as Conclusion No. 7 (XXVIII), paragraph (e), on the question of
custody or detention in relation to the expulsion of refugees
lawfully in a country, and Conclusion No. 8(XXVIII), paragraph (e),
on the determination of refugee status.
Noting that the term 'refugee' in the present
Conclusions has the same meaning as that in the 1951 Convention and
the 1967 Protocol relating to the Status of Refugees, and is without
prejudice to wider definitions applicable in different regions.
(a) Noted with deep concern that large numbers of
refugees and asylum-seekers in different areas of the world are
currently the subject of detention or similar restrictive measures by
reason of their illegal entry or presence in search of asylum,
pending resolution of their situation;
(b) Expressed the opinion that in view of the hardship
which it involves, detention should normally be avoided. If
necessary, detention may be resorted to only on grounds prescribed by
law to verify identity; to determine the elements on which the claim
to refugee status or asylum is based; to deal with cases where
refugees or asylum-seekers have destroyed their travel and/or
identity documents or have used fraudulent documents in order to
mislead the authorities of the State in which they intend to claim
asylum; or to protect national security or public order;
(c) Recognized the importance of fair and expeditious
procedures for determining refugee status or granting asylum in
protecting refugees and asylum-seekers from unjustified or unduly
prolonged detention;
(d) Stressed the importance for national legislation
and/or administrative practice to make the necessary distinction
between the situation of refugees and asylum-seekers, and that of
other aliens;
(e) Recommended that detention measures taken in respect
of refugees and asylum-seekers should be subject to judicial or
administrative review;
(f) Stressed that conditions of detention of refugees
and asylum seekers must be humane. In particular, refugees and
asylum-seekers shall, whenever possible, not be accommodated with
persons detained as common criminals, and shall not be located in
areas where their physical safety is endangered;
(g) Recommended that refugees and asylum-seekers who are
detained be provided with the opportunity to contact the Office of
the United Nations High Commissioner for Refugees or, in the absence
of such office, available national refugee assistance agencies;
(h) Reaffirmed that refugees and asylum-seekers have
duties to the country in which they find themselves, which require in
particular that they conform to its laws and regulations as well as
to measures taken for the maintenance of public order;
(i) Reaffirmed the fundamental importance of the
observance of the principle of non-refoulement and in this context
recalled the relevance of Conclusion No. 6 (XXVIII).”
To
give effect to the above Conclusion, UNHCR published Guidelines in
1995, which it revised and reissued on 10 February 1999. The
Guidelines made it clear that the detention of asylum seekers was
“inherently undesirable”. Guideline 3 provides that such
detention:
“may exceptionally be resorted to for the reasons
set out below ... as long as this is ... in conformity with general
norms and principles of international human rights law (including
Article 9 ICCPR) ... Where there are monitoring mechanisms which can
be employed as viable alternatives to detention, (such as reporting
obligations or guarantor requirements) ... these should be applied
first unless there is evidence to suggest that such an alternative
will not be effective in the individual case. Detention should
therefore only take place after a full consideration of all possible
alternatives, or when monitoring mechanisms have been demonstrated
not to have achieved the lawful and legitimate purpose.”
The
Guideline continued:
“... detention of asylum-seekers may only be
resorted to, if necessary: (i) to verify identity. This relates to
those cases where identity may be undetermined or in dispute; (ii) to
determine the elements on which the claim for refugee status or
asylum is based. This statement means that the asylum-seeker may be
detained exclusively for the purpose of a preliminary interview to
identify the basis of the asylum claim. This would involve obtaining
the essential facts from the asylum-seeker as to why asylum is being
sought and would not extend to a determination of the merits or
otherwise of the claim. This exception to the general principle
cannot be used to justify detention for the entire status
determination procedure, or for an unlimited period of time; (iii) in
cases where asylum-seekers have destroyed their travel and/or
identity documents or have used fraudulent documents in order to
mislead the authorities of the State in which they intend to claim
asylum. What must be established is the absence of good faith on the
part of the applicant to comply with the verification of identity
process. ... Asylum-seekers who arrive without documentation because
they are unable to obtain any in their country of origin should not
be detained solely for that reason ...”
On
18 December 1999 the UN Working Group on Arbitrary Detention,
reporting on its visit to the United Kingdom (E/CN.4/1999/63/Add.3)
recommended that the Government should:
“ensure that detention of asylum seekers is
resorted to only for reasons recognised as legitimate under
international standards and only when other measures will not suffice
...
Alternative and non-custodial measures, such as
reporting requirements, should always be considered before
resorting to detention.
The detaining authorities must assess a compelling need
to detain that is based on the personal history of each asylum seeker
...”
B. Council of Europe texts
In
2003 the Committee of Ministers of the Council of Europe adopted a
Recommendation (Rec (2003) 5) that stated, inter alia:
“The aim of detention is not to punish asylum
seekers. Measures of detention ... may be resorted to only in the
following situations: (a) when their identity, including nationality,
has in case of doubt to be verified, in particular when asylum
seekers have destroyed their travel or identity documents or used
fraudulent documents in order to mislead the authorities of the host
state; (b) when elements on which the asylum claim is based have to
be determined which, in the absence of detention, could not be
obtained; (c) when a decision needs to be taken on their right to
enter the territory of the state concerned; or (d) when protection of
national security and public order so requires. ... Measures of
detention of asylum seekers should be applied only after a careful
examination of their necessity in each individual case. Those
measures should be specific, temporary and non-arbitrary and should
be applied for the shortest possible time. Such measures are to be
implemented as prescribed by law and in conformity with standards
established by the relevant international instruments and by the
case-law of the European Court of Human Rights. ... Alternative and
non-custodial measures, feasible in the individual case, should be
considered before resorting to measures of detention. ...”
On
8 June 2005, the Council of Europe Commissioner for Human Rights, in
his report on his visit to the United Kingdom (CommDH(2005)6), noted
that:
“I would like to raise a number of points
regarding [asylum] proceedings. The first concerns the frequent
resort to detention for asylum seekers at the very outset of
proceedings. Whilst detention is not automatic in such proceedings,
there would appear to be a strong presumption in its favour; mooted
plans to increase the asylum detention estate in precisely this area
suggest that this is the direction in which the UK is headed. The UK
authorities have indicated to me that the UK courts have approved
detention for the sole purpose of processing asylum applications. I
do not exclude the possibility of detention being appropriate in
certain circumstances, but I do not believe that this would be an
appropriate rule. Open processing centres providing on-site
accommodation and proceedings are, I believe, a more appropriate
solution for the vast majority of applicants whose requests are
capable of being determined rapidly.”
C. European Union instruments
The
EU Charter of Fundamental Rights (2000) proclaims in Article 18:
“the right to asylum shall be guaranteed with due respect to
the rules of the [Refugee Convention]”.
Council
Directive 2005/85/EC of 1 December 2005, on minimum standards on
procedures in Member States for granting and withdrawing refugee
status (OJ L 326), which must be transposed into member States'
national law by 1 December 2008) provides in Article 7:
“Applicants shall be allowed to remain in the
Member State, for the sole purpose of the procedure, until such time
as the determining authority has made a decision in accordance with
the procedures at first instance set out in Chapter III. This right
to remain shall not constitute an entitlement to a residence permit.”
The
Directive further provides in Article 18:
“1. Member States shall not hold a person in
detention for the sole reason that he/she is an applicant for asylum.
2. Where an applicant for asylum is held in detention,
Member States shall ensure that there is a possibility of speedy
judicial review.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant alleged that he had been detained at Oakington in breach of
Article 5 § 1 of the Convention, which provides:
“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:
(a) the lawful detention of a person after conviction by
a competent court;
(b) the lawful arrest or detention of a person for
non-compliance with the lawful order of a court or in order to secure
the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence
or fleeing after having done so;
(d) the detention of a minor by lawful order for the
purpose of educational supervision or his lawful detention for the
purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention
of the spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
(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. Whether the applicant was deprived of his liberty
It
is not disputed by the Government that the applicant's detention at
Oakington amounted to a deprivation of liberty within the meaning of
Article 5 § 1. The Grand Chamber considers it clear that, given
the degree of confinement at Oakington, Mr Saadi was deprived of his
liberty within the meaning of Article 5 § 1 during the seven
days he was held there (see, for example, Engel and Others v. the
Netherlands, judgment of 8 June 1976, Series A no. 22, §§
60-66).
Article
5 § 1 sub-paragraphs (a) to (f) contain an exhaustive list of
permissible grounds of deprivation of liberty, and no deprivation of
liberty will be lawful unless it falls within one of those grounds
(see, inter alia, Witold Litwa v. Poland, no. 26629/95,
§ 49, ECHR 2000-III). In the present case the Government's
principal contention is that the detention was justified under the
first limb of Article 5 § 1(f); although they argue in the
alternative that it might also have been justified under the second
limb of that sub-paragraph. The Court must accordingly first
ascertain whether the applicant was lawfully detained “to
prevent his effecting an unauthorised entry into the country”.
B. Whether the deprivation of liberty was permissible
under sub-paragraph (f) of Article 5 § 1
1. The Chamber judgment
In
its judgment of 11 July 2006 the Chamber held, by four votes to
three, that the detention fell within the first limb of Article 5 §
1(f). The Chamber observed that it was a normal part of States'
“undeniable right to control aliens' entry into and residence
in their country” that States were permitted to detain would-be
immigrants who had applied for permission to enter, whether by way of
asylum or not. Until a potential immigrant had been granted leave to
remain in the country, he had not effected a lawful entry, and
detention could reasonably be considered to be aimed at preventing
unlawful entry.
The
Chamber continued that detention of a person was a major interference
with personal liberty, and must always be subject to close scrutiny.
Where individuals were lawfully at large in a country, the
authorities might detain only if a “reasonable balance”
was struck between the requirements of society and the individual's
freedom. The position regarding potential immigrants, whether they
were applying for asylum or not, was different to the extent that,
until their application for immigration clearance and/or asylum had
been dealt with, they were not “authorised” to be on the
territory. Subject, as always, to the rule against arbitrariness, the
Chamber accepted that the State had a broader discretion to decide
whether to detain potential immigrants than was the case for other
interferences with the right to liberty. Accordingly, there was no
requirement in Article 5 § 1 (f) that the detention of a person
to prevent his effecting an unauthorised entry into the country be
reasonably considered necessary, for example to prevent his
committing an offence or fleeing. All that was required was that the
detention should be a genuine part of the process to determine
whether the individual should be granted immigration clearance and/or
asylum, and that it should not otherwise be arbitrary, for example on
account of its length.
It
was plain that in the present case the applicant's detention at
Oakington was a bona fide application of the policy on
“fast-track” immigration decisions. As to the question of
arbitrariness, the Chamber noted that the applicant was released once
his asylum claim had been refused, leave to enter the United Kingdom
had been refused, and he had submitted a notice of appeal. The
detention lasted a total of seven days, which the Court found not to
be excessive in the circumstances. It therefore found no violation of
Article 5 § 1.
2. The parties' submissions
a) The Government
Before
the Grand Chamber the Government emphasised several factual aspects
of the case. First, the applicant had been detained for only seven
days, in a relaxed regime, with access to legal advice and other
facilities at the Centre. Secondly, in common with all others
detained at the Centre, the applicant was seeking authorisation to
enter the United Kingdom on the basis of asylum and human rights
grounds, under the Refugee Convention (see paragraph 33 above) and
the European Convention on Human Rights. The fact that he had earlier
been granted temporary admission for a short period, as an
alternative to detention, did not affect his position as a person
requiring authorisation to effect entry into the country. Third, he
was detained to enable speedy examination of his claim and a quick
decision as to whether to give or refuse leave to enter. The domestic
courts had referred to the increasingly high numbers of individuals
seeking asylum in the United Kingdom at the time of the applicant's
detention (see paragraphs 17 and 18 above) and had recognised that
the Oakington system was central to the Government's procedure for
processing such applications fairly and without undue delay.
The
Government reasoned that the phrase “to prevent his effecting
an unauthorised entry” was describing the factual situation
that the person was seeking to effect an entry, but had no
authorisation. Article 5 § 1(f) recognised that there might be
detention in conjunction with the State's deciding whether or not to
grant authorisation, in the exercise of its sovereign role to control
the entry into, and presence of aliens in its territory; a role
which, as the national courts had observed, had long been recognised
by international law.
The
Government relied on Chahal v. the United Kingdom (cited in
paragraph 17 above, § 112), where the Grand Chamber had held, in
connection with the second limb of Article 5 § 1(f), that
“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 ...”. They argued that there
was no good reason for distinguishing between the two limbs of the
sub-paragraph, so that a person who had been living within the
community could be detained in conjunction with a deportation even
though this was not necessary to prevent his absconding, but a person
who had newly arrived could be detained in conjunction with his
arrival only where this was necessary to prevent his absconding.
The
Government further denied that the applicant's detention had been
unlawful or arbitrary. It was clear, as the national courts at three
instances unanimously confirmed, that the detention had complied with
the substantive and procedural rules of national law (see paragraphs
16-18 above). The detention was not arbitrary, since, as the Chamber
had held, it had been a genuine part of the process to determine
whether the individual should be granted immigration clearance and/or
asylum, and its duration had been limited to that which was
reasonably necessary for that purpose. To argue, as did the
applicant, that the detention had been arbitrary because it might
have been possible to achieve the same purpose by use of an
“accommodation centre”, with similar conditions of
residence but no confinement, was misplaced, since it involved
seeking to reintroduce the “necessity” requirement
through the requirement of lack of arbitrariness. In any event, the
House of Lords had found that, given the tight schedule of
interviews, any arrangement short of detention would not have been as
effective (see paragraph 18 above).
b) The applicant
The
applicant submitted that the Convention had to be interpreted in
accordance with Articles 31-33 of the Vienna Convention on the Law of
Treaties (see paragraphs 26-28 above). He did not dispute the State's
sovereign right to control the entry and presence of aliens on its
territory, but emphasised that this right had to be exercised
consistently with the State's international obligations, in
particular those contained in the Convention, including Article 5.
The purpose defined by Article 5 § 1(f) first limb was to
prevent unlawful immigration, that is, entry and residence in a
country by the circumvention of immigration control. There had to be
a direct and precise causal relationship between the detention and
the risk of unauthorised entry. This purpose was underlined by the
words “his effecting”, indicating that the focus was upon
whether the particular individual, if not detained, would otherwise
effect an entry that was unauthorised. It was clear from the facts of
the applicant's case that, if he had not been detained, he would have
been lawfully present in the United Kingdom with “temporary
admission”, an “authorised” status in fact and law
(see, inter alia, the House of Lords' judgment in Szoma,
paragraph 21 above). The interpretation he advanced would allow for
initial detention for the purposes of verification and assessment of
the individual risk of unauthorised entry; such procedure formed part
of the ordinary process of immigration control, and was plainly
detention for the purpose of preventing the individual effecting an
unauthorised entry. It was not, however, permissible under Article 5
§ 1(f) to detain someone purely for administrative convenience.
The
applicant referred to the Court's case-law under other sub-paragraphs
of Article 5 § 1, requiring an objective need for the detention
of the particular individual to be demonstrated, and to the case-law
of the Human Rights Committee (see paragraph 31 above), and reasoned
that similar principles should apply under Article 5 § 1(f).
Although the Court in Chahal v. the United Kingdom (cited
above) did not require a necessity test in respect of Mr Chahal's
detention under the second part of Article 5 § 1(f), there was
good reason for distinguishing between the two limbs. First, as was
clear from paragraph 112 of the Chahal judgment, the contrast
made with the other sub-paragraphs of Article 5 § 1 was based on
the language of the provision under which Mr Chahal was detained,
which required only that “action [was] being taken with a view
to deportation”, whereas the first limb of Article 5 §
1(f) stipulated that detention had to be for the purpose of
preventing unauthorised entry. Secondly, on the facts of the Chahal
case, it was evident that release on bail would have been
inappropriate since it was alleged that Mr Chahal constituted a
national security threat. In contrast, a necessity test should apply
to those like the present applicant who “have [not] committed
criminal offences but ... who, often fearing for their lives, have
fled from their own country” (Amuur, cited above, §
43).
In
common with all other Oakington detainees, the applicant had been
assessed as presenting no risk of absconding, and the sole purpose of
the deprivation of liberty was to enable a quick decision to be made
on his asylum claim. This was a manifestly insufficient reason for
the purposes of Article 5 § 1(f), which required that there be a
risk, in the particular case, of the subject making an unauthorised
entry into the country. Detention at Oakington was not
proportionate, since no lesser measure (for example, an accommodation
centre) had first been tried. Moreover there was evidence to suggest
that the decision to opt for detention at Oakington was led by the
reaction of local residents and planning committees rather than a
clear need for detention to enable speedy processing of asylum
applications.
3. The third parties' submissions
a) UNHCR
UNHCR
was concerned that the Chamber judgment, which (1) assimilated
the position of asylum seekers to ordinary immigrants, (2) considered
that an asylum seeker effectively had no lawful or authorised status
prior to the successful determination of the claim and (3) rejected
the application of a necessity test to the question whether detention
was arbitrary, permitted States to detain asylum seekers on grounds
of expediency in wide circumstances that were incompatible with
general principles of international refugee and human rights
law. Properly construed, Article 5 § 1(f) should
confer robust protection against detention for asylum seekers. The
sub-paragraph stipulated a purpose, the effecting of an unauthorised
entry, which detention must prevent. Asylum seekers had to be
distinguished from general classes of illegal entrants or those
facing deportation, and in order to detain an asylum seeker under
Article 5 § 1(f), there had to be something more than the mere
absence of a decision on the claim; the detention had to be
necessary, in the sense that less intrusive measures would not
suffice, and proportionate to the aim pursued.
UNHCR
reminded the Court that, as with the Refugee Convention, the European
Convention on Human Rights had to be interpreted in harmony with
other rules of international law of which it formed part,
particularly where such rules were found in human rights treaties
which State Parties to the Convention had ratified and were therefore
willing to accept (see Al-Adsani v. the United Kingdom, [GC]
no. 35763/97, § 55, ECHR 2001-XI). It further had to be
interpreted in a manner which ensured that rights were given a broad
construction and that limitations were narrowly construed, in a
manner which gave practical and effective protection to human rights,
and as a living instrument, in light of present day conditions and in
accordance with developments in international law so as to reflect
the increasingly high standard being required in the area of the
protection of human rights.
Under
international law, there was an obligation on States not to refoule
persons who had accessed the jurisdiction or territorial frontier
and claimed the fundamental right to seek and enjoy asylum. There was
a further duty, except in mass influx situations, to admit such
persons to fair and efficient determination procedures (see Articles
3-31 of the Refugee Convention, paragraph 33 above). Where a State
admitted an asylum seeker to procedures, and the asylum seeker
complied with national law, his temporary entry into and presence on
the territory could not be considered as “unauthorised”;
the grant of temporary admission was precisely an authorisation by
the State temporarily to allow the individual to enter its territory
consistent with the law. In such a situation, the asylum seeker was
not seeking unauthorised entry, but rather, had been granted
temporary but authorised entry for the purpose of having the asylum
claim considered (see Article 31 of the Refugee Convention, paragraph
33 above; Szoma, paragraph 21 above; EU Council Directive
2005/85/EC, Article 7, paragraph 40 above).
UNHCR
referred to a number of international instruments relating to the
detention of asylum seekers, including Article 9 of the ICCPR as
interpreted by the Human Rights Committee in cases such as A. v.
Australia, Article 31 of the Refugee Convention, the
Executive Committee's Conclusion No. 44 and the UNHCR's Guidelines on
detention of asylum seekers (see paragraphs 31 and 33-35 above). It
concluded that while the process of examining those who are seeking
asylum might involve necessary and incidental interference with
liberty, where detention was resorted to for permitted purposes but
on a fact-insensitive blanket basis, or effected purely for reasons
of expediency or administrative convenience, it failed the necessity
test required by international refugee and human rights law.
b) Liberty, ECRE and the AIRE Centre
The
above three non-governmental organisations pointed out that this
would be the first case in which the Court had to decide on the
meaning of the first limb of Article 5 § 1(f). They asked the
Grand Chamber to hold, as a matter of general principle, (1) that in
the absence of evidence that an individual asylum seeker would, but
for being detained, effect or attempt to effect an unauthorised entry
into the country, such detention does not fall within Article 5 §
1(f); and (2) that the detention of asylum seekers under Article 5 §
1(f), like detention under the other sub-paragraphs of Article 5 §
1 and the lesser restriction imposed on their freedom of movement
under Article 2 of Protocol No. 4, must be subject to the test of
necessity and proportionality.
The
Chamber's approach, based on the finding that the detention of an
asylum seeker was covered by the second limb of Article 5 § 1(f)
where no positive decision on his or her claim had yet been made, sat
uncomfortably with the principle that asylum seekers who had duly
presented a claim for international protection were ipso facto
lawfully within the territory for the purposes of Article 2 of
Protocol No. 4 and also Article 12 of the ICCPR (see paragraph 32
above). Whilst it was true, as the Chamber had held, that prolonged
duration might render arbitrary a detention which was not so at the
outset, the reverse was not the case; the brevity of the period could
not justify unnecessary detention. Article 5 § 1(f) of the
Convention should be interpreted consistently with Article 9 of the
ICCPR (see paragraph 31 above), which required that any deprivation
of liberty imposed in an immigration context should be lawful,
necessary and proportionate. Moreover, it would be inappropriate for
the Court, in the first Grand Chamber judgment on the first limb of
Article 5 § 1(f), to adopt a lower level of protection than that
which had already been agreed by the Member States through the
Committee of Ministers (see paragraph 37 above) or than that which
applied to mere restrictions on freedom of movement under Article 2
of Protocol No. 4.
In
many States, the precise legal basis for the detention of asylum
seekers was unclear, but cases were unlikely to reach the courts
because of language difficulties, lack of legal representation and
fear on the part of asylum seekers that complaints about detention
might prejudice the outcome of their claims. The arbitrary nature of
such detention would be exacerbated if the Grand Chamber were to
uphold the Chamber's view and give States complete freedom to deprive
all asylum seekers of their liberty whilst their claims were being
processed, without any requirement to show that the detention was
necessary for the purpose specified in Article 5 § 1(f), namely
to prevent the making of an unauthorised entry.
4. The Court's assessment
a) The meaning of the phrase “... to
prevent his effecting an unauthorised entry into the country”
In
the present case the Court is called upon for the first time to
interpret the meaning of the words in the first limb of Article 5 §
1(f), “... lawful ... detention of a person to prevent his
effecting an unauthorised entry into the country ...” (in
French: “la détention
[régulière] d'une personne pour l'empêcher de
pénétrer irrégulièrement dans le
territoire”). In
ascertaining the Convention meaning of this phrase, it will, as
always, be guided by Articles 31 to 33 of the Vienna Convention on
the Law of Treaties (paragraphs 26-28 above, and see, for example,
Golder v. the United Kingdom, judgment of 21 February 1975,
Series A no. 18, § 29; Johnston and Others v. Ireland,
judgment of 18 December 1986, Series A no. 112, § 51 et seq.;
Lithgow and Others v. the United Kingdom, judgment of 8 July
1986, Series A no. 102, §§ 114 and 17; Witold Litwa v.
Poland, cited above, §§ 57-59).
Under
the Vienna Convention on the Law of Treaties, the Court is required
to ascertain the ordinary meaning to be given to the words in their
context and in the light of the object and purpose of the provision
from which they are drawn (see the Golder judgment, § 29;
the Johnston judgment, § 51; and Article 31 § 1 of
the Vienna Convention). The Court must have regard to the fact that
the context of the provision is a treaty for the effective protection
of individual human rights and that the Convention must be read as a
whole, and interpreted in such a way as to promote internal
consistency and harmony between its various provisions (Stec and
Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and
65900/01, § 48, ECHR 2005-X). The Court must also take into
account any relevant rules and principles of international law
applicable in relations between the Contracting Parties (see
Al-Adsani v. the United Kingdom, cited above, § 55;
Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland
[GC], no. 45036/98, § 150, ECHR 2005-III; and Article 31 §
3(c) of the Vienna Convention). Recourse may also be had to
supplementary means of interpretation, including the preparatory
works to the Convention, either to confirm a meaning determined in
accordance with the above steps, or to establish the meaning where it
would otherwise be ambiguous, obscure or manifestly absurd or
unreasonable (Article 32 of the Vienna Convention).
When
considering the object and purpose of the provision within its
context, and the international law background, the Court has regard
to the importance of Article 5 in the Convention system: it enshrines
a fundamental human right, namely the protection of the individual
against arbitrary interferences by the State with his right to
liberty (see, inter alia, Winterwerp v. the Netherlands,
judgment of 24 October 1979, Series A no. 33, § 37 and Brogan
and Others v. the United Kingdom, judgment of 29 November
1988, Series A no. 145-B, § 58).
Whilst
the general rule set out in Article 5 § 1 is that everyone has
the right to liberty, Article 5 § 1(f) provides an
exception to that general rule, permitting States to control the
liberty of aliens in an immigration context. As the Court has
remarked before, subject to their obligations under the Convention,
States enjoy an “undeniable sovereign right to control aliens'
entry into and residence in their territory” (see the Amuur
judgment cited above, § 41; the Chahal judgment cited
above, § 73; Abdulaziz, Cabales and Balkandali v. the
United Kingdom, judgment of 28 May 1985, Series A no. 94, §§
67-68). It is a necessary adjunct to this right that States are
permitted to detain would-be immigrants who have applied for
permission to enter, whether by way of asylum or not. It is evident
from the tenor of the judgment in Amuur that the detention of
potential immigrants, including asylum seekers, is capable of being
compatible with Article 5 § 1(f).
On
this point, the Grand Chamber agrees with the Court of Appeal, the
House of Lords and the Chamber, that until a State has “authorised”
entry to the country, any entry is “unauthorised” and the
detention of a person who wishes to effect entry and who needs but
does not yet have authorisation to do so, can be, without any
distortion of language, to “prevent his effecting an
unauthorised entry”. It does not accept that, as soon as an
asylum seeker has surrendered himself to the immigration authorities,
he is seeking to effect an “authorised” entry, with the
result that detention cannot be justified under the first limb of
Article 5 § 1 (f). To interpret the first limb of Article 5
§ 1(f) as permitting detention only of a person who is shown to
be trying to evade entry restrictions would be to place too narrow a
construction on the terms of the provision and on the power of the
State to exercise its undeniable right of control referred to above.
Such an interpretation would, moreover, be inconsistent with
Conclusion No. 44 of the Executive Committee of the United Nations
High Commissioner for Refugees' Programme, the UNHCR's Guidelines and
the Committee of Ministers' Recommendation (see paragraphs 34-35 and
37 above), all of which envisage the detention of asylum seekers in
certain circumstances, for example while identity checks are taking
place or when elements on which the asylum claim is based have to be
determined.
While
holding, however, that the first limb of Article 5 § 1(f)
permits the detention of an asylum seeker or other immigrant prior to
the State's grant of authorisation to enter, the Court emphasises
that such detention must be compatible with the overall purpose of
Article 5, which is to safeguard the right to liberty and ensure that
no-one should be dispossessed of his or her liberty in an arbitrary
fashion.
The
Court must now consider what is meant by “freedom from
arbitrariness” in the context of the first limb of Article 5 §
1(f) and whether, in all the circumstances, the applicant's detention
was compatible with that provision.
b) The notion of arbitrary detention in
the context of Article 5
It
is well established in the Court's case-law under the sub-paragraphs
of Article 5 § 1 that any deprivation of liberty must, in
addition to falling within one of the exceptions set out in
sub-paragraphs (a)-(f), be “lawful”. 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. Compliance with national law is not, however,
sufficient: Article 5 § 1 requires in addition that any
deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness (see, among many other
authorities, Winterwerp, cited above § 37; Amuur,
cited above, § 50; Chahal, cited above, § 118,
and Witold Litwa, cited above, § 78). It is a
fundamental principle that no detention which is arbitrary can be
compatible with Article 5 § 1 and the notion of “arbitrariness”
in Article 5 § 1 extends beyond lack of conformity with
national law, so that a deprivation of liberty may be lawful in terms
of domestic law but still arbitrary and thus contrary to the
Convention.
While
the Court has not previously formulated a global definition as to
what types of conduct on the part of the authorities might constitute
“arbitrariness” for the purposes of Article 5 § 1,
key principles have been developed on a case-by-case basis. It is
moreover clear from the case-law that the notion of arbitrariness in
the context of Article 5 varies to a certain extent depending on the
type of detention involved (see further below).
One
general principle established in the case-law is that detention will
be “arbitrary” where, despite complying with the letter
of national law, there has been an element of bad faith or deception
on the part of the authorities (see, for example, Bozano v.
France, judgment of 18 December 1986, Series A no. 111; Čonka
v. Belgium, no. 51564/99, ECHR 2002-I). The condition that
there be no arbitrariness further demands that both the order to
detain and the execution of the detention must genuinely conform with
the purpose of the restrictions permitted by the relevant
sub-paragraph of Article 5 § 1 (Winterwerp, cited above,
§ 39; Bouamar v. Belgium, judgment of 29 February
1988, Series A no. 129, § 50; O'Hara v. the United Kingdom,
no. 37555/97, § 34, ECHR 2001-X). There must in addition be some
relationship between the ground of permitted deprivation of liberty
relied on and the place and conditions of detention (see the
above-mentioned Bouamar judgment, § 50; Aerts v.
Belgium, judgment of 30 July 1998, Reports 1998-V, §
46; Enhorn v. Sweden, no. 56529/00, § 42,
ECHR 2005-I).
The
notion of arbitrariness in the contexts of sub-paragraphs (b), (d)
and (e) also includes an assessment whether detention was necessary
to achieve the stated aim. The detention of an individual is such a
serious measure that it is justified only as a last resort where
other, less severe measures have been considered and found to be
insufficient to safeguard the individual or public interest which
might require that the person concerned be detained (see Witold
Litwa, cited above, § 78; Hilda Hafsteinsdóttir
v. Iceland, no. 40905/98, § 51, 8 June 2004; Enhorn v.
Sweden, cited above, § 44). The principle of proportionality
further dictates that where detention is to secure the fulfilment of
an obligation provided by law, a balance must be struck between the
importance in a democratic society of securing the immediate
fulfilment of the obligation in question, and the importance of the
right to liberty (see Vasileva v. Denmark, no. 52792/99, § 37,
25 September 2003). The duration of the detention is a relevant
factor in striking such a balance (ibid., and see also McVeigh and
Others v. the United Kingdom, applications nos. 8022/77, 8025/77,
8027/77, Commission decision of 18 March 1981, DR 25, pp. 37-38 and
42).
The
Court applies a different approach towards the principle that there
should be no arbitrariness in cases of detention under Article 5 §
1(a), where, in the absence of bad faith or one of the other grounds
set out in paragraph 69 above, as long as the detention follows and
has a sufficient causal connection with a lawful conviction, the
decision to impose a sentence of detention and the length of that
sentence are matters for the national authorities rather than for the
Court under Article 5 § 1 (see T. v. the United Kingdom [GC],
no. 24724/94, § 103, ECHR 2000-I ; and also Stafford v. the
United Kingdom [GC], no. 46295/99, § 64, ECHR 2002-IV).
Similarly,
where a person has been detained under Article 5 § 1(f), the
Grand Chamber, interpreting the second limb of this sub-paragraph,
held that, as long as a person was being detained “with a view
to deportation”, that is, as long as “action [was] being
taken with a view to deportation”, there was no requirement
that the detention be reasonably considered necessary, for example to
prevent the person concerned from committing an offence or fleeing
(Chahal, cited above, § 112). The Grand Chamber further
held in Chahal that the principle of proportionality applied
to detention under Article 5 § 1(f) only to the extent that the
detention should not continue for an unreasonable length of time;
thus, it held (§ 113) that “any deprivation of liberty
under Article 5 § 1(f) will be justified only for as long as
deportation proceedings are in progress. If such proceedings are not
prosecuted with due diligence, the detention will cease to be
permissible ...” (and see also Gebremedhin
[Gaberamadine] v. France, no. 25389/05, § 74, ECHR
2007-...).
With
regard to the foregoing, the Court considers that the principle that
detention should not be arbitrary must apply to detention under the
first limb of Article 5 § 1(f) in the same manner as it applies
to detention under the second limb. Since States enjoy the right to
control equally an alien's entry into and residence in their country
(see the cases cited in paragraph 63 above), it would be artificial
to apply a different proportionality test to cases of detention at
the point of entry than that which applies to deportation,
extradition or expulsion of a person already in the country.
To
avoid being branded as arbitrary, therefore, such detention must be
carried out in good faith; it must be closely connected to the
purpose of preventing unauthorised entry of the person to the
country; the place and conditions of detention should be appropriate,
bearing in mind that “the measure is applicable not to those
who have committed criminal offences but to aliens who, often fearing
for their lives, have fled from their own country” (see Amuur,
§ 43); and the length of the detention should not exceed that
reasonably required for the purpose pursued.
c) Was the applicant's detention
arbitrary?
Before
examining whether the applicant's detention at Oakington was
arbitrary in the sense outlined above, the Court observes that the
national courts at three levels found that it had a basis in national
law, and the applicant does not contend that this conclusion was
incorrect.
In
examining whether the applicant's detention was compatible with the
criteria set out in paragraph 74 above, the Court further recalls the
following findings of the Court of Appeal and House of Lords (see
paragraphs 17-18 above), which it accepts. The national courts found
that the purpose of the Oakington detention regime was to ensure the
speedy resolution of some 13,000 of the approximately 84,000 asylum
applications made in the United Kingdom per year at that time. In
order to achieve this objective it was necessary to schedule up to
150 interviews a day and even small delays might disrupt the entire
programme. The applicant was selected for detention on the basis that
his case was suited for fast track processing.
In
these circumstances, the Court finds that the national authorities
acted in good faith in detaining the applicant. Indeed the policy
behind the creation of the Oakington regime was generally to benefit
asylum seekers; as Lord Slynn put it, “getting a speedy
decision is in the interests not only of the applicants but of those
increasingly in the queue” (see paragraph 18 above). Moreover,
since the purpose of the deprivation of liberty was to enable the
authorities quickly and efficiently to determine the applicant's
claim to asylum, his detention was closely connected to the purpose
of preventing unauthorised entry.
As
regards the third criterion, the place and conditions of detention,
the Court notes that the Oakington Centre was specifically adapted to
hold asylum seekers and that various facilities, for recreation,
religious observance, medical care and, importantly, legal
assistance, were provided (see paragraph 25 above). While there was,
undoubtedly, an interference with the applicant's liberty and
comfort, he makes no complaint regarding the conditions in which he
was held and the Court holds that the detention was free from
arbitrariness under this head.
Finally,
as regards the length of the detention, the Court recalls that the
applicant was held for seven days at Oakington, and released the day
after his claim to asylum had been refused at first instance. This
period of detention cannot be said to have exceeded that reasonably
required for the purpose pursued.
In
conclusion, therefore, the Court finds that, given the difficult
administrative problems with which the United Kingdom was confronted
during the period in question, with an escalating flow of huge
numbers of asylum-seekers (and see also Amuur, cited above, §
41), it was not incompatible with Article 5 § 1(f) of the
Convention to detain the applicant for seven days in suitable
conditions to enable his claim to asylum to be processed
speedily. Moreover, regard must be had to the fact that
the provision of a more efficient system of determining large numbers
of asylum claims rendered unnecessary recourse to a broader and more
extensive use of detention powers.
It
follows that there has been no violation of Article 5 § 1 in the
present case.
II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION
The
applicant contended that he was not informed of the genuine reason
for his detention until some 76 hours after his arrest, when the
information was given orally to his legal representative in response
to that person's enquiry. He alleged a violation of Article 5 §
2 of the Convention, which provides as follows:
“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.”
The
Government pointed to the general statements of intent regarding the
Oakington detention regime. They accepted that the forms in use at
the time of the applicant's detention were deficient, but contended
that the reasons given orally to the applicant's on-site
representative (who knew the general reasons) on 5 January 2001 were
sufficient to enable the applicant to challenge the lawfulness of his
detention under Article 5 § 4 if he wished.
The
applicant underlined that unsolicited reasons were not given at any
stage, and that solicited reasons were given orally in the afternoon
of 5 January 2001, some 76 hours after the arrest and detention.
Mere reference to policy announcements could not displace the
requirement to provide sufficiently prompt, adequate reasons to the
applicant in relation to his detention.
The
Chamber found a violation of this provision, on the ground that the
reason for detention was not given sufficiently “promptly”.
It found that general statements – such as the parliamentary
announcements in the present case – could not replace the need
under Article 5 § 2 for the individual to be informed of the
reasons for his arrest or detention. The first time the applicant was
told of the real reason for his detention was through his
representative on 5 January 2001 (see paragraph 14 above), when the
applicant had already been in detention for 76 hours. Assuming that
the giving of oral reasons to a representative met the requirements
of Article 5 § 2 of the Convention, the Chamber found that
a delay of 76 hours in providing reasons for detention was not
compatible with the requirement of the provision that such reasons
should be given “promptly”.
The
Grand Chamber agrees with the Chamber's reasoning and conclusion. It
follows that there has been a violation of Article 5 § 2 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
Court notes that before the Chamber the applicant claimed EUR 5,000
compensation for non-pecuniary damage in respect of the seven days he
spent in detention in Oakington. The Chamber, which, like the Grand
Chamber, found a violation of Article 5 § 2 of the Convention
but not of Article 5 § 1, held that the finding of the violation
provided sufficient just satisfaction.
The
applicant did not contest this award, neither in his request that the
case be referred to the Grand Chamber nor in his written observations
before the Grand Chamber.
In
all the circumstances, the Grand Chamber decides to maintain the
Chamber's decision that the finding of a violation provided
sufficient just satisfaction for the failure promptly to inform the
applicant of the reasons for his detention.
B. Costs and expenses
The
applicant claimed costs and expenses before the Grand Chamber of GBP
28,676.51 plus value-added tax (“VAT”), in addition to
GBP 15,305.56 for costs incurred before the Chamber.
The
Government endorsed the approach taken by the Chamber under Article
41. They considered the costs before the Grand Chamber to be
excessive, in particular the rate of GBP 200 per hour charged by each
of the two counsel and the number of hours claimed. If the Court were
to find a violation of Article 5 § 1, no more than GBP 10,000
should be allowed for counsels' fees. If only a violation of Article
5 § 2 were found, only a small proportion of the costs claimed
should be awarded.
In
connection with the Chamber costs, the Grand Chamber recalls the
Chamber's decision to award only EUR 1,500, since it had found a
violation of only Article 5 § 2 and since the major part of
the work on the case had been directed at establishing a violation of
Article 5 § 1. The Grand Chamber maintains this award in respect
of the costs and expenses incurred up to the delivery of the
Chamber's judgment. Given that it, too, has found only a violation of
Article 5 § 2, and that almost the entirety of the written and
oral pleadings before it concerned Article 5 § 1, the Grand
Chamber awards a further EUR 1,500 in respect of the proceedings
subsequent to the Chamber's judgment of 11 July 2006, bringing the
total costs and expenses awarded to EUR 3,000 plus any VAT that might
be payable.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Holds by eleven votes to six that there has been
no violation of Article 5 § 1 of the Convention;
Holds unanimously that there has been a
violation of Article 5 § 2 of the Convention;
Holds unanimously that the finding of a
violation constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months,
EUR 3,000 (three thousand euros) in respect of costs and expenses, to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 29 January 2008.
Michael O'Boyle Jean-Paul Costa
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following joint partly dissenting
opinion of Judges Rozakis, Tulkens, Kovler, Hajiyev, Spielmann and
Hirvelä is annexed to this judgment.
J.-P.C.
M.O'B.
JOINT PARTLY DISSENTING OPINION
OF JUDGES ROZAKIS,
TULKENS, KOVLER, HAJIYEV, SPIELMANN AND HIRVELÄ
(Translation)
We do
not share the majority's conclusion that there has been no violation
of Article 5 § 1 (f) of the Convention in the instant case, in a
situation where it is not disputed that the applicant's detention for
seven days in the Oakington reception centre amounted to a
deprivation of liberty for the purposes of the Convention. The issues
at stake in this case are important on two counts. Firstly, the case
concerns asylum seekers' rights under the Convention and the
increasingly worrying situation regarding their detention. Secondly,
this is the first case in which the Court has been called upon to
provide an interpretation of the first part of Article 5 § 1 (f),
which authorises “the lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the country”
and, in particular, of the requirement of necessity imposed by that
provision.
It is
generally accepted that the aim of the first limb of Article
5 § 1 (f) of the Convention is to prevent illegal
immigration, that is, entry into or residence in a country based on
circumvention of the immigration control procedures. In the instant
case the applicant fled the Kurdish Autonomous Region of Iraq after
treating members of the Iraqi Workers' Communist Party in the course
of his duties as a doctor, and claimed asylum on his arrival at
London Heathrow airport. The majority attach no importance to this
fact, assimilating the situation of asylum seekers to that of
ordinary immigrants. Paragraph 64 of the judgment is very clear in
this regard and from the outset situates the exception provided for
by Article 5 § 1 (f) in the overall context of
immigration control. After reiterating that States enjoy “an
'undeniable sovereign right to control aliens' entry into and
residence in their territory'”, the majority state that “[i]t
is a necessary adjunct to this right that States are permitted to
detain would-be immigrants who have applied for permission to enter,
whether by way of asylum or not”.
In
such a radical form, this statement sits uncomfortably with the
principle that asylum seekers who have presented a claim for
international protection are ipso facto lawfully within the
territory of a State, in particular for the purposes of Article 12 of
the International Covenant on Civil and Political Rights (liberty of
movement) and the case-law of the Human Rights Committee, according
to which a person who has duly presented an application for asylum is
considered to be “lawfully within the territory” (see
paragraph 32 of the judgment). The particular circumstances of this
case, moreover, demonstrate this implicitly but with certainty. On
his arrival at the airport on 30 December 2000 the applicant was
granted temporary
admission (see paragraphs 20-21 of the judgment), under the terms of
which he could spend the night in the hotel of his choice but had to
return to the airport the following morning. On 31 December 2000 the
applicant reported as required and was again granted temporary
admission until the next day. When he again reported to the airport
as agreed he was granted temporary admission for the third time until
10 a.m. the following day, 2 January 2001. It was not until 2
January, after reporting as required, that he was detained and
transferred to the Oakington reception centre, where there is a
prison-like atmosphere. In any event, the theoretical debate as to
whether a person is unlawfully present within a country's territory
until he or she has been granted leave to enter is of no real
relevance in this case, given that the applicant was in fact given
permission to enter for three days.
When
considering the context, object and purpose of Article 5 of the
Convention, the judgment rightly stresses “the importance of
Article 5 in the Convention system”, which “enshrines a
fundamental human right, namely the protection of the individual
against arbitrary interferences by the State with his right to
liberty” (see paragraph 63). However, the majority deem it
necessary to consider what is meant by “protection against
arbitrariness” in the present case, and take the view that “the
principle that detention should not be arbitrary must apply to
detention under the first limb of Article 5 § 1 (f) in the same
manner as it applies to detention under the second limb. Since States
enjoy the right to control equally an alien's entry into and
residence in their country ..., it would be artificial to apply a
different proportionality test to cases of detention at the point of
entry than that which applies to deportation, extradition or
expulsion of a person already in the country” (see paragraph
73). Hence, the judgment does not hesitate to treat completely
without distinction all categories of non nationals in all
situations – illegal immigrants, persons liable to be deported
and those who have committed offences – including them without
qualification under the general heading of immigration control, which
falls within the scope of States' unlimited sovereignty.
In
the context of migration, according to the judgment, the only
requirement which the detention measure must satisfy to avoid being
branded as arbitrary is that it must have been carried out “in
good faith”. It must also “be closely connected to the
purpose of preventing unauthorised entry of the person to the
country” (see paragraph 74). Are these requirements met in the
instant case?
With
regard first of all to the question of good faith, the Court
has no hesitation in subscribing to the observations of the domestic
courts, which found that the detention regime in Oakington was
designed to ensure the speedy resolution “of some 13,000 of the
approximately 84,000 asylum applications made in the United Kingdom
per year at that time. In order to achieve this objective it was
necessary to schedule up to 150 interviews a day and even small
delays might disrupt the entire programme. The applicant was selected
for detention on the basis that his case was suited for fast track
processing” (see paragraph 76). In these circumstances, the
Court found that the national authorities acted in “good faith”
in detaining the applicant. Indeed, the policy behind the creation of
the Oakington regime was generally to benefit asylum seekers;
detention was therefore in their best interests.
If
even “small delays” were considered to disrupt the entire
programme, it is difficult to discern why, on arriving at the airport
and lodging his asylum claim, the applicant was first allowed to
remain at liberty and was requested to go to a hotel and report of
his own accord on the following days to the authorities responsible
for his case (which he duly did).
More
fundamentally, not just in the context of asylum but also in other
situations involving deprivation of liberty, to maintain that
detention is in the interests of the person concerned appears to us
an exceedingly dangerous stance to adopt. Furthermore, to contend in
the present case that detention is in the interests not merely of the
asylum seekers themselves “but of those increasingly in the
queue” is equally unacceptable. In no circumstances can the end
justify the means; no person, no human being may be used as a means
towards an end.
Next,
as regards the purpose of detention, in stating that “since
the purpose of the deprivation of liberty was to enable the
authorities quickly and efficiently to determine the applicant's
claim to asylum, his detention was closely connected to the purpose
of preventing unauthorised entry” (see paragraph 77 in
fine), the Court does not hesitate to go a step further and
assimilate all asylum seekers to potential illegal immigrants.
In
the interests of rigour we believe that for detention to be
authorised the authorities must satisfy themselves in concreto
that it has been ordered exclusively in pursuit of one of the aims
referred to in the Convention, in this instance to prevent the
person's effecting unauthorised entry into the country. This has in
no sense been established in the present case, as the applicant did
not enter or attempt to enter the country unlawfully. On the other
hand, if the authorities had objectively verifiable grounds to
believe that the applicant was liable to abscond before his claim for
asylum had been determined, they could have made use of detention in
accordance with Article 5 § 1 (f) of the Convention. In that
case, the detention would have been aimed at preventing the asylum
seeker from entering or remaining in the country for a purpose other
than that for which he had been granted temporary admission.
Conversely, it is not permissible to detain refugees on the sole
ground that they have made a claim for asylum.
It is
not disputed in the present case that the applicant's detention was
aimed at ensuring the speedy resolution of his claim for asylum and
hence the adoption of a decision on the subject at the earliest date
possible. His detention therefore pursued a purely bureaucratic and
administrative goal, unrelated to any need to prevent his
unauthorised entry into the country. As Judges Casadevall, Traja and
Šikuta rightly observed in their dissenting opinion annexed to
the Chamber judgment of 11 July 2006, such a situation creates great
legal uncertainty for asylum seekers, stemming from the fact
that they could be detained at any time during examination of their
application without their being able to take the necessary action to
avoid detention. Hence, the asylum seeker becomes an object rather
than a subject of law.
Lastly,
following the same line of thinking, the Court accepts in the instant
case that a seven-day period of detention “cannot be said to
have exceeded that reasonably required for the purpose
pursued” (see paragraph 79). In so doing, it is accepting a
period of detention which it does not generally sanction in the other
cases of deprivation of liberty contemplated by Article 5 of the
Convention. Granted, it is understandable that in certain situations,
for example concerning extradition, the State must be allowed greater
latitude than in the case of other interferences with the right to
liberty. However, we can see no justification for adopting such an
approach in relation to asylum seekers, with the attendant risk that
the scrutiny of deprivations of liberty under the European Convention
on Human Rights will be substantially weakened as a result. Moreover,
if a seven-day period of detention is not considered excessive, where
and how do we draw the line for what is unacceptable?
As
regards detention generally, the requirements of necessity and
proportionality oblige the State to furnish relevant and sufficient
grounds for the measure taken and to consider other less coercive
measures, and also to give reasons why those measures are deemed
insufficient to safeguard the private or public interests underlying
the deprivation of liberty. Mere administrative expediency or
convenience will not suffice. We fail to see what value or higher
interest can justify the notion that these fundamental guarantees of
individual liberty in a State governed by the rule of law cannot or
should not apply to the detention of asylum seekers.
Hence,
to the extent that these requirements must be encompassed in the
notion of arbitrariness, the question of alternatives to
detention should have been considered by the majority. They make no
mention of it until the closing paragraphs of their reasoning where,
paradoxically, they recognise that “the provision of a more
efficient system of determining large numbers of asylum claims
rendered unnecessary recourse to a broader and more extensive use of
detention powers” (see paragraph 80). It is thus clearly
acknowledged that an alternative to detention might have existed
enabling the problem to be dealt with at source, in other words at
the level of the management of asylum applications; this further
underscores the fact that detention was the wrong answer to the right
question.
The
European Convention on Human Rights does not apply in a vacuum, but
in conjunction with the other international fundamental rights
protection instruments. In that regard, with reference to the United
Nations, Article 9 of the International Covenant on Civil and
Political Rights – which prohibits arbitrary arrest or
detention and applies to all cases of deprivation of liberty,
including in the context of immigration controls – has been
interpreted by the Human Rights Committee's case-law to mean that
detention must not simply be lawful, but must also not have been
imposed on grounds of administrative expediency (see Van Alphen v.
the Netherlands, Communication No. 305/1988, UN Doc.
CCPR/C/39/D/305/1988 (1990)). In addition, it must satisfy the
requirements of necessity and proportionality. Lastly, the review of
a detention by the courts must not be confined to assessing whether
it complies with domestic law, but must also make it possible to
determine, even in cases of illegal entry, whether factors particular
to the individual (likelihood of absconding, lack of cooperation, and
so on) justify his or her detention (see A. v. Australia,
Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993
(1997)). In its decision in Bakhtiyari v. Australia, the
Committee confirms that a court review which does not allow the
courts to reexamine the justification of the detention in substantive
terms will not satisfy the requirements of Article 9 of the Covenant
(see Bakhtiyari v. Australia, Communication No.
1069/2002, UN Doc. CCPR/C/79/D/1069/2002 (2003)).
With
reference to the European Union, mention should be made of
Article 18 of the European Union Charter of Fundamental Rights, which
recognises the right to asylum of refugees within the meaning of the
Geneva Convention. Article 18(1) of Council Directive 2005/85/EC of
1 December 2005 on minimum standards on procedures in Member
States for granting and withdrawing refugee status (OJEC L 326 of 13
December 2005, p. 13) provides that “Member States shall not
hold a person in detention for the sole reason that he/she is an
applicant for asylum”. This, in our view, is the minimum
guarantee, and the assertion made in this provision provides a useful
adjunct to the rules set forth in Article 7 of Council Directive
2003/9/EC of 27 January 2003 laying down minimum standards for
the reception of asylum seekers (OJEC L 31 of 6 February 2003, p.
18). Article 23 (3) and (4) of Directive 2005/85/EC also makes
provision for priority or accelerated examination procedures.
As to
the Council of Europe, Committee of Ministers Recommendation
Rec(2003)5 of 16 April 2003 on measures of detention of asylum
seekers states that the persons falling within the scope of the first
limb of Article 5 § 1 (f) do not include
“asylum seekers on criminal charges or rejected asylum seekers
detained pending their removal from the host country” (point
2). It further states that measures of detention of asylum seekers
“should be applied only after a careful examination of their
necessity in each individual case. These measures should be specific,
temporary and non-arbitrary and should be applied for the shortest
possible time. Such measures are to be implemented as prescribed by
law and in conformity with standards established by the relevant
international instruments...” (point 4). Finally,
“[a]lternative and non-custodial measures, feasible in the
individual case, should be considered before resorting to measures of
detention” (point 6).
The
crux of the matter here is whether it is permissible today for the
European Convention on Human Rights to provide a lower level of
protection than that which is recognised and accepted in the other
organisations.
Ultimately,
are we now also to accept that Article 5 of the Convention, which has
played a major role in ensuring controls of arbitrary detention,
should afford a lower level of protection as regards asylum and
immigration which, in social and human terms, are the most crucial
issues facing us in the years to come? Is it a crime to be a
foreigner? We do not think so.
