European Court of Human Rights

Information Note on the Court’s case-law No. 167

Ismail v. the United Kingdom (dec.) - 48078/09

Decision 17.9.2013 [Section IV] See: [2013] ECHR 1153

Article 5

Article 5-4

Speediness of review

Speediness of application for bail by person detained pending deportation: Article 5 § 4 inapplicable; inadmissible

Facts – In November 2006 the applicant was detained under powers contained in the Immigration Act 1971 on the basis that he was subject to a decision to make a deportation order. In March 2007 he made an application for bail, which was refused on the grounds there was a risk of his absconding. A deportation order was subsequently issued, whereupon the applicant made a fresh application for bail and requested a bail hearing within three working days. When this did not happen he sought judicial review, arguing that the failure to list his bail application within the three-day period set out in the relevant domestic rules was a violation of his rights under Article 5 § 4 of the Convention. However, he was refused permission to bring judicial-review proceedings, inter alia, on the grounds that Article 5 § 4 was not applicable because an application for bail did not determine the lawfulness of detention.

Law – Article 5 § 4: The applicant was detained from November 2006 to July 2007, initially on the basis that he was subject to a decision to make a deportation order, and then on the basis that he was subject to a deportation order. He did not seek to challenge the lawfulness of his detention, including whether it was compatible with the requirements of Article 5 § 1 (f); had he chosen to do so, he could have issued a writ of habeas corpus or made an application for judicial review. Instead, he chose to apply for bail, on the grounds that, notwithstanding that his detention was lawful, less coercive means, such as release subject to reporting requirements or other conditions, would also have ensured that he would be available at such time as the deportation were scheduled to go ahead. Accordingly, since the lawfulness of the detention under Article 5 § 1 (f) was not in issue, Article 5 § 4 was not engaged.

Conclusion: inadmissible (incompatible ratione materiae).

(Garcia Alva v. Germany, 23541/94, 13 February 2001, Information Note 27; and Allen v. the United Kingdom, 18837/06, 30 March 2010, Information Note 128)

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