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Cite as: [2012] ECHR 223

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FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2134/10
by Naeem Anwar TABASSUM
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 24 January 2012 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 12 January 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Naeem Anwar Tabassum, was born in 1966 and lives in West Drayton. His nationality is in dispute. He maintains that he is a national of the United Kingdom; the Government maintain that he is a Pakistani national.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant claims to have been born in the United Kingdom to a British mother and a Pakistani father, and thus to have British nationality. He claims that he returned as a young child with his father to Pakistan, where he lived until he re-entered the United Kingdom in 2000, travelling with both his expired child’s British passport and his valid Pakistani passport. There is no evidence to support this account, as he claims that both passports were subsequently stolen from him.

In November 2001, the applicant was convicted for persistently soliciting a woman for prostitution and fined. He was convicted in July 2004 of obtaining property by deception, for which he was sentenced to two years’ imprisonment. He was convicted in May 2005 of soliciting persons for car hire without a licence and driving whilst uninsured, for which he received a fine. He was convicted in September 2008 of driving whilst uninsured, for which he was fined and disqualified from driving for six months. On 19 September, he was convicted of forgery. He was sentenced to eighteen months’ imprisonment and deportation proceedings against him were initiated. He was notified of his liability to deportation on 29 October 2008 and did not make any representations in response. Nor did he appeal against deportation. On 10 December 2008, he was served with a signed deportation order. At the expiry of his sentence on 12 June 2009, the applicant was taken into immigration detention pending his deportation.

On 1 December 2008, whilst still in prison, the applicant refused to attend an interview with the High Commission for Pakistan in London to obtain a travel document. Following a warning, however, he attended an interview on 23 June 2010. The Pakistani authorities were not prepared to accept that the applicant was a national of Pakistan; however, subsequent to the interview, further documentation was sent to the High Commission by the British authorities in evidence of the applicant’s connection to Pakistan. Regular reminders have since been sent by the British authorities and, on 17 June 2011, a response was received from the High Commission, stating that the applicant’s national status was required to be verified from Pakistan.

The applicant sought permission to apply for judicial review of the legality of his detention. Permission was granted and a substantive hearing was held before the High Court on 15 July 2011. The onus was on the applicant to prove his claimed British citizenship and the judge found that, on the evidence before him and having regard to the applicant’s dishonesty and use of false identities in the past, he had not done so. He had not established that any of the identities he had claimed in the past were actually his, or that he had been born in the United Kingdom to a British mother, as he claimed. Having failed to prove that he was British, he must be treated as a foreign criminal, and was thus liable to detention pending his deportation. The judge was satisfied that the Secretary of State was genuinely using the power to detain for the purposes of effecting the applicant’s deportation. While the two-year period of immigration detention was long, it was not unreasonable, given the applicant’s insistence that he was British when he was not, and his failure to disclose sufficient details about his years in Pakistan to enable the Pakistani authorities to issue him with a travel document. The judge also accepted the Secretary of State’s decision that the applicant presented a high risk of absconding and of committing further offences if granted immigration bail; the fact that the applicant was failing to cooperate in obtaining a travel document only reinforced this risk. The key point was that the obstacles to the applicant’s deportation had been created by the applicant himself and his failure to give an honest account to either the British or Pakistani authorities. Given that his claim to be British had now been examined and rejected by a court, the judge found that the applicant might now be minded to disclose the necessary information to the authorities to enable a travel document to be issued. There was a sufficiently realistic prospect that the applicant’s deportation would take place within a reasonable time to render his continued detention lawful.

The applicant notified the Court on 21 December 2011 that he had been released from detention. He did not provide any information as to why he had been released.

B. Relevant domestic law

Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.

Section 3(8) of the same Act provides that when any question arises as to whether a person is a British citizen or not, the onus shall be on the person asserting such citizenship to prove it.

Paragraph 2 of Schedule 3 of the same Act provides that, where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom.

The Supreme Court recently reaffirmed principles that had been set down in the case of R. v. Governor of Durham Prison, ex parte Hardial Singh (1984) 1 WLR 704 regarding the Secretary of State’s power to detain those whose deportation is pending, in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12. The principles are as follows: i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) the deportee may only be detained for a period that is reasonable in all the circumstances; iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, he should not seek to exercise the power of detention; and iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.

COMPLAINT

The applicant complained under Article 5 of the Convention about the length of his detention, which he maintained also was unlawful given that he was a British citizen.

THE LAW

Article 5 of the Convention, so far as relevant, provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(f) the lawful arrest or detention of a person ... against whom action is being taken with a view to deportation or extradition.”

The Court recalls that subparagraphs (a) to (f) of Article 5 § 1 of the Convention contain an exhaustive list of permissible grounds of deprivation of liberty, and that no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008-...). The first question for the Court, therefore, is to determine whether the applicant’s detention fell within the scope of Article 5 § 1 (f), since that is the only ground of detention of relevance to his case.

The Court observes that, having failed to discharge the burden of proving that he is a British national as he claims, the applicant is clearly liable to deportation as a foreign national who has committed several offences. The Court further notes that, on the date on which the applicant was taken into detention, there was a deportation order against him in force. Given that the applicant had not made representations against or sought to appeal the decision to deport him, the only barrier to his deportation at that time was the need to obtain a travel document. The Court has no reason to doubt that the applicant was detained in order to effect his deportation and to prevent his absconding and thus rendering deportation impossible. His detention therefore fell squarely within the scope of Article 5 § 1 (f).

The Court further recalls that Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, 19 February 2009, and Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996 V).

The deprivation of liberty must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question of 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. 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 (see Saadi, cited above, § 67). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom, cited above, § 164, and, mutatis mutandis, Saadi, cited above, § 74).

The Court observes that the lawfulness of the applicant’s detention was considered and confirmed by the High Court, which found that the length of his detention at that time was not unreasonable in all the circumstances of the case, and particularly in the light of the applicant’s failure to disclose information within his knowledge which would facilitate the provision of a travel document to him by the Pakistani authorities. Having regard to the judgment of the High Court and to the domestic legislation setting out the Secretary of State’s powers to order the detention of persons whose deportation is pending, the Court finds that the applicant’s detention was lawful in terms of the national law.

Moreover, the Court finds that the applicant’s detention was not arbitrary. The Court has been given no reason to believe that the authorities, in maintaining the applicant’s detention, were acting otherwise than in good faith. The applicant’s detention was clearly connected to the ground of detention in that he was being detained in order to ensure that his deportation could be effected, once a travel document for him could be obtained. The applicant did not suggest, and the Court does not find, that his conditions of detention were inappropriate.

Finally, as regards the length of the applicant’s detention, the Court notes the High Court’s findings that, as at July 2011, this had not exceeded what was reasonable in all the circumstances of the case, and finds that this remained true throughout the period of the applicant’s detention. The applicant had the power to curtail his detention by disclosing sufficient information, which must surely be within his knowledge, to permit the Pakistani authorities to issue him with a travel document. His failure to do so and insistence that he is a British citizen when he has failed to prove that this is true acted to lengthen the period that he spent detained. This was in spite of the exercise by the domestic authorities of due diligence in trying to effect his deportation. In this regard, the Court notes that the domestic authorities organised more than one interview for the applicant with the Pakistani authorities; sent further information to the Pakistani authorities following their initial refusal to accept the applicant as a national of Pakistan; and sent regular reminders to the Pakistani authorities to follow up on the applicant’s case. The Pakistani High Commission in London confirmed in June 2011 that the supplementary information provided by the United Kingdom authorities had been forwarded to Pakistan in order that the applicant’s national status could be verified. It is not known whether the applicant’s release from detention signified the failure of the domestic authorities’ attempts to obtain a travel document for the applicant or whether a decision was simply taken domestically that the applicant’s detention was approaching the limit of what was reasonable in the circumstances. However, it is apparent to the Court that the domestic authorities clearly pursued the applicant’s removal to Pakistan throughout his detention and exercised due diligence in so doing.

The present case can therefore be distinguished from others in which the Court has found that detention for shorter periods than that for which the present applicant was detained violated Article 5 § 1 (f). In Louled Massoud v. Malta, no. 24340/08, 27 July 2010, the applicant, a failed asylum seeker of Algerian national origin, was detained for eighteen months. The Court found that his detention had been arbitrary, having regard in particular to the Maltese Government’s failure to demonstrate that they had pursued the applicant’s deportation vigorously or endeavoured entering into negotiations with the Algerian authorities with a view to obtaining a travel document for the applicant (see paragraph 66 of the judgment), and the lack of safeguards against arbitrariness present in the Maltese system (see paragraph 71). The Court finds that, unlike the Maltese authorities in the aforementioned case, the United Kingdom authorities, as found by the High Court and confirmed above by this Court, acted with due diligence in attempting to obtain a travel document in respect of the present applicant. The Court also agrees with the High Court that the present applicant’s own actions, in insisting on his British citizenship and in failing to divulge details of his life in Pakistan that would enable the Pakistani authorities to identify him, contributed in large part to the length of his detention. This is in contrast to the applicant in Louled Massoud where, although the Maltese Government argued that he had been unwilling to cooperate with the repatriation process, the applicant contended that the authorities had never in fact contacted him with a view to facilitating his removal (see paragraph 54 of the judgment).

The Court finds that the present case can also be distinguished from Auad v. Bulgaria, no. 46390/10, 11 October 2011 in which the applicant, a Palestinian who had last lived in a refugee camp in Lebanon, was detained for precisely eighteen months, only being released when his detention reached the maximum length of time permitted by Article 15 of Directive 2008/115/EC. The Court found that his detention, notwithstanding the fact that it did not exceed what was permitted by the Directive, was not justified by valid grounds throughout the entire period. The Court notes that the above mentioned Directive is not applicable in the United Kingdom. However, the real issue in Auad, which is also of relevance in the present case, was whether the Bulgarian authorities had acted with due diligence to secure the applicant’s deportation. The Court found that they had not, given the lack of evidence that the Bulgarian Government had vigorously pursued the matter with the Lebanese authorities or had made any effort to secure the applicant’s admission to a safe third country. The authorities’ failings were further compounded by the fact that no destination country in respect of the applicant had been specified, which was problematic in terms of legal certainty. The Court finds that the present case can be distinguished from Auad on the grounds that the Government clearly tried to pursue the applicant’s deportation to a specific country, namely Pakistan, and that, as stated above, they employed due diligence in their efforts to do so.

22. The Court does not exclude that, in a case such as the present where an applicant withholds information which is required in order effect his deportation, his continued detention could exceed a reasonable period, notwithstanding the detainee’s own role in its duration. The Court recalls in this regard its findings in Mikolenko v. Estonia, no. 10664/05, §§ 64 and 65, 8 October 2009, which concerned a national of Russia kept in detention in Estonia for a period of just under four years due to his refusal to fill in the necessary application forms to renew his Russian passport and the Russian authorities’ refusal to accept his return on a temporary travel document. In that case, the Court found that the applicant’s detention had exceeded what was reasonable in all the circumstances of the case and found a violation of Article 5 § 1. However, the case of Mikolenko differs from the present case on the grounds that, in Mikolenko, the Russian authorities had continually refused to admit the applicant on a temporary document, while at the same time it was entirely clear that the applicant was unwilling to sign the forms necessary for him to be issued with a new passport. In the present case, the Pakistani authorities expressed no lack of willingness to accept the applicant, if his nationality could be established. The information necessary to establish the applicant’s nationality is undoubtedly within the applicant’s knowledge and within his power to divulge. The efforts made throughout his period of detention to deport him to Pakistan were not “bound to fail”, as the Court found to be the case in Mikolenko, § 64.

The Court therefore finds, having regard to the fact that the domestic authorities employed due diligence in attempting to secure the applicant’s deportation throughout the entire period for which he was detained, his detention did not exceed what was reasonable in all the circumstances of the case and was not arbitrary.

It follows that the applicant’s complaint under Article 5 of the Convention is manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Lawrence Early Lech Garlicki
Registrar President